Docket: IMM-4928-14
Citation:
2015 FC 182
Vancouver, British Columbia, February 13, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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ROBERT KHACHATOURIAN
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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.
Introduction
[1]
This is an application by Robert Khachatourian
[the Applicant] for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of the
Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada,
dated February 19, 2014, which upheld the decision of the Refugee Protection
Division [RPD], dated February 3, 2014, determining that the Applicant was
neither a Convention Refugee nor a person in need of protection within the meaning
of sections 96 and 97 of IRPA.
II.
Facts
[2]
The Applicant is 43 years old and claims to be
of Iranian-Armenian background and a member of the Armenian Apostolic Orthodox
Church. He was born in Kuwait, but is of Iranian nationality. The Applicant and
his family returned to live in Iran shortly after his birth.
[3]
While in Iran, the Applicant alleged that his
grandfather’s church was attacked by Muslim reactionaries. His grandfather was
an orthodox priest. The Applicant and his family subsequently moved to Kuwait because of hateful events perpetuated against them. The Applicant was eight years old
at the time.
[4]
The Applicant never obtained citizenship or
permanent residence in Kuwait.
[5]
He moved to the United States in 2005 to pursue
a business venture and married a citizen of that country in 2006. The couple
separated in 2009.
[6]
The Applicant applied for asylum in the United States in 2010. He stated that he did not hear anything about his asylum claim or
his application for renewal of his United-States work visa. He therefore came
to Canada on October 3, 2013, and made a refugee claim shortly after.
III.
Refugee Protection Division Decision
[7]
The Applicant was represented by counsel before
the RPD. The Minister did not intervene.
[8]
The RPD first found that the Applicant is a
citizen of Iran and of no other country. He does not have an ongoing right
to live in Kuwait.
[9]
Before the RPD, the Applicant claimed that he
would be persecuted if he were to return to Iran because of his Orthodox faith.
He alleged that in practising his faith, he would proselytise and seek to
convert other persons to his faith, and would be persecuted for doing so. He
also claimed that he would be persecuted because of his link to his
grandfather, who was involved in converting Muslims to Christianity before the
Islamic Revolution of the 1970s. The Applicant further alleged that there is no
adequate state protection available for him and that the possibility of harm
exists in Iran throughout the country.
[10]
The RPD wrote that the Applicant was born into a
Christian Armenian family and the Armenian Apostolic Orthodox Church Tradition.
The RPD concluded that the Armenian Orthodox Church is not involved in
proselytizing and does not accept Muslim converts into its Church. The RPD
found the Applicant not credible on this point and that he is unlikely to face
an increased risk of persecution as a member of this Church.
[11]
On January 15, 2014, the RPD rendered an oral
decision stating that the Applicant was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of IRPA.
IV.
Refugee Appeal Division Decision - Impugned
Decision
[12]
The Applicant represented himself before the
RAD. The Minister did not intervene.
[13]
The issues on appeal at the RAD are:
•
Did the RPD err in law in its findings on
credibility?
•
Did the RPD fail to complete the necessary
evaluation of all the evidence issues at hand, and in turn render an erroneous
decision without regard to the testimony and evidence provided by the Applicant
in support of his refugee claim?
[14]
The RAD relied on Iyamuremye v Canada
(Minister of Citizenship and Immigration), 2014 FC 494 [Iyamuremye]
to state that the applicable standard of review is that of reasonableness,
which is concerned with “the justification,
transparency and intelligibility of the decision-making process, but also with
whether the decision falls within a range of possible, acceptable outcomes
defensible in respect of the facts and law” (Applicant’s Record [AR], page
11 at para 26).
[15]
The RAD also explained that the Applicant sought
to introduce “new” evidence pursuant to subsection 110(4) of IRPA as well
as holding a new hearing before the RAD under subsection 110(6) of IRPA. Based
on its interpretation of subsection 110(4) of IRPA and on Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385, the RAD accepted the
introduction of a letter from the Applicant’s godfather as a new document. The
Applicant also sought to present three additional letters pursuant to subsection
110(6) of IRPA, along with seven pictures. These documents were not accepted by
the RAD.
[16]
The RAD then reviewed the RPD conclusions on the
nature of the treatment in Iran of the Armenian Apostolic Orthodox Church
and of the RPD’s finding that it did not find credible that the Applicant would
engage in proselytizing activities. The RAD found that the RPD’s determination “fell within the range of possible, acceptable outcomes,
defensible in respect of the facts and the law” and is thus reasonable.
The RAD also assessed the RPD’s credibility findings and although one of the
findings (the passport issue) was found not to be reasonable, it concluded
that overall, the remaining findings stood and that was sufficient to render
the RPD decision reasonable.
[17]
The RAD also concluded that there is no basis to
hold a hearing before the RAD pursuant to subsections 110(3) and 110(6) of
IRPA, along with subsection 110(4) and paragraph 110(6)(c) of IRPA. The RAD
therefore concluded that the RPD decision was reasonable. Pursuant to paragraph
111(1)(a) of IRPA, the RAD confirmed the RPD’s conclusion that the Applicant
was neither a Convention refugee nor a person in need of protection. The appeal
is rejected.
V.
Parties’ Submissions
[18]
The Applicant first submits that the RAD applied
the wrong standard of review based on jurisprudence of this Court. It applied
the reasonableness standard instead of undertaking its own review of the
evidence and considering whether existing errors could reasonably have impacted
the ultimate decision. The Respondent retorts that the RAD’s decision to review
the RPD decision on the reasonableness standard is consistent with the
jurisprudence, the provisions of IRPA and the respective roles and functions of
the RPD and the RAD. The Respondent further argues that it is not the role of
the RAD to reweigh all of the evidence again and make its own credibility
findings or other findings of fact or to re-hear the matter. An appeal at the
RAD is not a de novo hearing.
[19]
The Applicant also submits that both the RAD and
the RPD failed to consider that Armenian Christians generally refrain from
proselytizing in Iran because they would face persecution. More specifically,
the RAD failed to assess that the restrictions on the well established right to
practise religion in a regular and open manner rise to the level of persecution.
The RAD also erred in ignoring relevant evidence of risk and discrimination facing
Armenian Christians and other non-Muslims. The Respondent responds by arguing
that the RAD reviewed the RPD’s credibility findings along with the new
evidence the Applicant sought to introduce and decided to uphold the RPD’s
findings as reasonable. The Applicant is simply stating that the RAD should
have made its own credibility findings.
[20]
In its reply, the Applicant submits that the
comments made by Justice Shore in Iyamuremye, above, upon which
the Respondent relies for the proposition that the RAD should apply a
deferential standard of reasonableness in appeals for the RPD are obiter
dicta. Moreover, the Applicant states that this Court has recently rendered
four decisions where it has sent the matters back for re-determination on the
issue of standard of reasonableness at the RAD.
[21]
In its Further Memorandum of Argument, the
Applicant further argues that a number of decisions from this Court have held
that the standard of reasonableness is not the proper standard of review to be
applied by the RAD: Yetna v Canada (Minister of Citizenship and Immigration),
2014 FC 858 [Yetna]; Spasoja v Canada (Minister of Citizenship and
Immigration), 2014 FC 913 [Spasoja]; Alyafi v Canada (Minister of
Citizenship and Immigration), 2014 FC 952 [Alyafi]; Singh v
Canada (Minister of Citizenship and Immigration), 2014 FC 1022 [Singh].
The Applicant adds that even if the proper standard of review was applied by
the RAD, the decision remains unreasonable.
[22]
The Respondent, in its Further Memorandum, states
that the RAD afforded proper deference to the RPD’s credibility findings and
other findings of fact. Unless the RAD’s determination is unreasonable, the
Court should not interfere with the RAD’s determination of the applicable
standard of review when reviewing RPD decisions. The tribunal’s interpretation
of its home statute is reviewable on a reasonableness standard.
[23]
The Respondent also argues that recent
jurisprudence from this Court have upheld RAD decisions confirming the RPD’s
conclusions when credibility of the refugee claimant was the central issue: Yin
v Canada (Minister of Citizenship and Immigration), 2014 FC 1209 [Yin];
Sajad v Canada (Minister of Citizenship and Immigration), 2014 FC 1107 [Sajad];
Allalou v Canada (Minister of Citizenship and Immigration), 2014 FC
1084; Djossou v Canada (Minister of Citizenship and Immigration), 2014
FC 1080 [Djossou]; Akuffo v Canada (Minister of Citizenship and
Immigration), 2014 FC 1063 [Akuffo]. Moreover, the provisions of
IRPA support the suggestion that the RAD’s determination of the RPD’s
credibility findings should be given deference. The Respondent adds that the
role of the RAD is to review RPD decisions and to identify errors made by the
RPD. The Respondent also submits that the RAD properly upheld the RPD’s
credibility findings since it reviewed the RPD’s findings, the evidence
provided to the RPD, along with the evidence the Applicant sought to introduce.
VI.
Issues
[24]
The Applicant proposes the following two issues:
•
Did the RAD apply the correct standard of
review?
•
Did the RAD err in its analysis of persecution
and risk?
[25]
The Respondent presents the issues as follows:
•
Did the RAD make a reviewable error by affording
deference to the RPD’s credibility findings and other findings of fact and
mixed fact and law?
•
Did the RAD make a reviewable error when it
upheld the RPD’s credibility findings?
•
Did the RAD make a reviewable error when it
upheld the RPD’s finding that the Applicant had not established that he faced a
well-founded fear of persecution in Iran?
[26]
After reviewing the parties’ submissions and the
proposed issues, I frame the issue as follows:
•
In adopting the reasonableness standard to an
appeal process, did the RAD adequately review the credibility findings made by
the RPD?
VII.
Standard of Review
[27]
Several decisions from this Court have issued an
opinion as to which standard of review should be applied to the scope of the
review by the RAD on an appeal. Justice Martineau in Djossou, above
at para 18, wrote that many judges of this Court are of the opinion that the
correctness standard applies. Other decisions state the opposite, namely that
this Court should apply the reasonableness standard when reviewing the standard
of intervention chosen by the RAD in its review of a RPD decision (Akuffo,
above at paras 16 to 26; Djossou, above at para 18).
[28]
The “standard of review
this Court should apply when reviewing the standard of intervention chosen by
the RAD in its review of a RPD decision is undecided” (Yin, above
at para 33). This question is not determinative with regard to the case at
bar. I will thus use a pragmatic approach for the determination of the
present judicial review (Ibid at para 34; Djossou, above at para
37).
[29]
In the present appeal, the RAD is being asked to
review the credibility findings of the RPD along with whether or not the RPD
failed to complete the necessary evaluation of the documentary evidence related
to the issues at hand. When it comes to questions of mixed fact and law in a
judicial review, the reasonableness standard applies. I will thus apply the standard
of review of reasonableness to the present matter (Dunsmuir v New-Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 53).
VIII.
Analysis
A.
In adopting the reasonableness standard to an
appeal process, did the RAD adequately review the credibility findings made by
the RPD?
[30]
In the case at bar, the RAD’s decision to apply
the reasonableness standard to the RPD decision is not an acceptable outcome
in law, as the appeal before the RAD is not a judicial review (Alyafi, above
at para 10; Nahal v Canada (Minister of Citizenship and Immigration),
2014 FC 1208 at para 26 [Nahal]). Indeed, the RAD, citing decisions
from this Court, wrote:
The determinative issues for the RPD were
credibility and whether or not the appellant had a well-founded fear of
persecution. The latter is primarily also a credibility finding. The standard
of review with respect to credibility findings, which are essentially pure findings
of fact, is reasonableness. Reasonableness is concerned with the justification,
transparency and intelligibility of the decision-making process, but also with
whether the decision falls within a range of possible, acceptable outcomes
defensible in respect of the facts and the law. There is no substantive reason
why the RAD should not apply a similar definition of reasonableness (AR page 11
at para 26).
[31]
Although I believe that when it comes to
credibility determinations a certain level of deference is owed to the factual
findings of the RPD by the RAD, I do not believe that the same level of
deference is applicable to the standard of reasonableness in a judicial review
(Nahal, above at para 27). The RAD must assume its appeal role as
the legislation calls for, but for the RAD to act as a judicial review
body is not assuming its obligation as an appeal body. The Federal Court of
Appeal will eventually clarify this.
[32]
The Respondent lists jurisprudence from this
Court to support its position that this Court has upheld decisions from the RAD
confirming RPD conclusions when the credibility of the refugee claimant was the
central issue. The approach taken by the RAD in those instances was however
different from the approach taken in the present case. In Yin, the
undersigned explained that the RAD conducted its own assessment of the evidence
and went further in its analysis than the RPD did (para 37). In Akuffo,
Justice Gagné wrote that the RAD reviewed and assessed the evidence presented
before the RPD (paras 46-48). In Sajad, Justice Shore explained that the
RAD raised the contradictory information the Applicant presented and that the
RAD showed proper deference to the RPD credibility findings (para 26). In Djossou,
contrary to the Respondent’s argument, Justice Martineau wrote that he will not
judicially impose on the RAD any degree of deference whatsoever to be applied
to RPD decisions (para 91). Justice Martineau also specified in Alyafi, above,
that he does not speculate nor give a definitive opinion as to the scope of the
examination of a RPD decision on appeal to the RAD (paras 51-52).
[33]
In the case at bar, contrary to the
jurisprudence cited by the Respondent, the RAD does not make its own analysis
of the case but simply reviewed the RPD credibility determinations and judged
them reasonable. Throughout the decision, the RAD wrote “the RPD found” (para 36), “the Member found” (paras 36, 42, 46, 49, 53, 60), “the RPD determination” (para 37), “the Member’s review” (para 37), the “Member refers” (para 38), the “Member notes” (para 38), “the
Member carefully reviewed” (para 39), “the
Member discusses” (para 40), “the Member drew
the following conclusions” (para 43), “the
conclusions drawn by the RPD Member” (para 44), “the Member acknowledged” (para 46),“the Member provided” (Ibid), “the Member placed” (Ibid), “inconsistencies found by the Member” (para 47),
“the Member reviewed” (Ibid), “the Member concluded” (para 49), “the Member lists” (Ibid), “the Member noted” (para 52), “the
Member commented” (para 54), “the Member also
stated” (Ibid) and “the Member’s
findings” (para 61). This enunciation of the references to the reliance
the RAD was showing towards the RPD is by itself a clear indication of a high
degree of deference. It does not disclose the analysis that an appeal board
should be doing in such a situation.
[34]
Moreover, the RAD makes numerous references to Dunsmuir’s
definition of reasonableness throughout its decision when assessing the RPD
determinations. For example, it concluded that “in
this case, it was open to the Member to assign greater or lesser weight to the evidence
she reviewed and that her determination fell within the range of possible,
acceptable outcomes, defensible in respect of the facts and the law. I find her
conclusion in this regard to be reasonable” (AR, page 16 at para
44). Similar conclusions can also be found in the RAD’s decision at paragraphs
46, 60 and 68. Again, this judicial review approach shows a high level
of deference for the RPD and does not exhibit the analysis that an appeal
body must be doing in such cases. Only on this basis it is sufficient to
justify an intervention of this Court.
[35]
Having reviewed the main credibility findings
made by the RPD and the analysis by the RAD, I note that the RAD’s
contradictory finding on the passport issue and whether or not the Applicant
had gone back to Iran after 1979 to be telling. The RPD qualified this negative
credibility as being “a significant contradiction”
and that it “[c]ast in doubt your entire narrative of
events in Iran which rely wholly on the credibility of your testimony […].”
The RPD concludes that this was such that it was enough to find his refugee
claim as not founded.
[36]
Then, the RAD explains that the RPD was wrong in
making this finding, but goes on to say that the other findings are such that
the RPD decision overall was reasonable. As seen in the preceding paragraph,
the RPD, only on this finding, had decided to conclude that “[T]here are compelling reasons to find you a Refugee on
grounds of what you experienced in Iran is not founded.” The RAD did not
deal with the importance of such a finding for the RPD and the impact it may
have had on the remaining findings. It limited itself to assessing the other
credibility findings without dealing with the importance of the first
credibility finding. Also, only on this issue, this was unreasonable. Only on
this point, this would justify this Court to intervene.
[37]
I am also concerned with the admissibility of
documents and the approach followed by the RAD when dealing with subsection
110(4) of the IRPA. Subsection 110(4) states that “[O]n 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.” This
matter was not raised by the parties and I will limit my comment to referring
the parties to Singh, above at paras 44 to 58. In Singh,
Justice Gagné concluded that the criteria established in Raza, above, do
not automatically apply to an analysis under subsection 110(4) of IRPA. First,
the roles of a PRRA Officer and of the RAD differ: a PRRA Officer does not have
an appeal role with regards to RPD decisions and does not have a quasi-judicial
function. The RAD is a quasi-judicial body acting as an appellate tribunal of
the RPD’s decisions (paras 49-50). The intention of creating the RAD was to
give a “full-fact based appeal” (Singh, above
at para 54; Djossou, above at para 85) to the appellant.
Accordingly, it is important that the criteria regarding the admissibility of
evidence are sufficiently flexible to ensure that this can occur, especially
considering the strict timelines a claimant now faces for initially submitting
evidence before the RPD (Singh, above at para 55). Justice Gagné further
wrote that:
In Raza, Justice Sharlow
distinguishes between the express and the implicit questions raised by
paragraph 113(a) of the Act and specifically states that the four
implied questions (credibility, relevance, newness and materiality) find their
source in the purpose of paragraph 113(a) within the statutory scheme of
the Act relating to refugee claims and PRRA applications. In my view, they
need to be addressed in that specific context and are not transferable in the
context of an appeal before the RAD (Ibid at para 56).
[38]
I will limit my comments to this as I did not
have the benefit of counsel’s submissions. It will be for another time.
[39]
The application for judicial review will
therefore be allowed and the case will be referred back to the RAD for
reconsideration of the Applicant’s appeal. The RAD simply adopted the
reasonableness standard applicable to judicial review in reviewing the RPD
decision thus denying the Applicant his appeal. It was also unreasonable, as
seen earlier, for the RAD not to realize the crucial importance of the
passport issue finding made by the RPD on the other credibility findings.
[40]
The parties were invited to suggest a question
for certification but none was made.
IX.
Conclusion
[41]
The application for judicial review is allowed
and no question will be certified.
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