Docket: IMM-1011-14
Citation:
2015 FC 295
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
DJENEBA SOW
|
|
Applicant
|
|
And
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application by Djeneba Sow seeking to
set aside an appeal decision of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board from an earlier Refugee Protection Division [RPD]
decision which denied her claim to refugee protection. The determinative issue
in the underlying proceedings was identity. Neither the RPD nor the RAD was
satisfied that Ms. Sow was a citizen of Mauritania and both, therefore,
considered it unnecessary to assess her substantive allegations of risk.
[2]
In the hearing before the RPD, Ms. Sow produced
a single identity document in the form of a photocopy of a birth certificate.
The RPD was not satisfied with Ms. Sow’s explanations for failing to produce the
original birth certificate or additional reliable identity documentation. It
was also concerned by Ms. Sow’s inability to answer basic questions about her
life in Mauritania. It concluded its decision by finding that she had not
established her personal or national identity and had not made reasonable
attempts to do so. The RPD also drew a “significant
negative credibility inference” from Ms. Sow’s testimony in support of
her identity and nationality.
[3]
Ms. Sow appealed the RPD finding to the RAD
where she sought to strengthen her claim with evidence about her subsequent but
failed efforts to obtain better identity documents. The RAD refused to admit
any of the newly adduced evidence on the basis that it either did not comply
with the admissibility criteria in section 110(4) of the Immigration and Refugee
Protection Act [IRPA] or was irrelevant.
[4]
The RAD considered the merits of Ms. Sow’s
appeal on the evidentiary record before the RPD. The RAD identified the
standard of review it was required to apply as reasonableness. It described the
scope of its review authority in the following way:
[42] For these reasons, the RAD
concludes that, in considering this appeal, it must show deference to the
factual and credibility findings of the RPD. The notion of deference to
administrative tribunal decision-making requires a respectful attention to the
reasons offered or which could be offered in support of the decision made. Even
if the reasons given do not seem wholly adequate to support the decision, the
RAD must first seek to supplement them before it substitutes its own decision.
[43] The appropriate standard of review
in this appeal is one of reasonableness. Reasonableness is concerned mostly
with the existence of justification, transparency, and intelligibility within
the RPD decision-making process, but also with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law.
[5]
The RAD went on to consider the reasonableness
of the RPD’s identity findings. It began by reviewing the RPD’s analysis of the
birth certificate and, in particular, the conclusion that its appearance did
not correspond with Ms. Sow’s evidence about the poor quality of the discarded
original. The RAD found that the RPD had not conducted an impermissible
forensic analysis and had the relative advantage of “first
hand access to the document” and “a degree of
expertise in this area”. The RAD found no error in the RPD’s treatment
of this evidence. It described the RPD’s adverse credibility finding concerning
this evidence to be justifiable, transparent and intelligible and, therefore,
reasonable. The RAD concluded its review of the record in the following way:
[49] Even if the RPD had erred in its
credibility assessment of the photocopy of the birth certificate, the RAD would
nevertheless find the RPD’s identity determination to be reasonable. The
photocopy of the birth certificate does not establish any link or connection
with the Appellant who appeared before the RPD.
[50] The RPD’s finding that the
Appellant has not established her identity falls within a range of possible,
acceptable outcomes that is defensible in respect of the fact and law. As such,
this appeal cannot succeed.
[6]
The RAD declined Ms. Sow’s request for an oral
hearing for the following reasons:
[51] The Appellant did not ask that
an oral hearing be held, pursuant to Section 110(6) of IRPA.
[52] The RAD has not admitted any of
the new evidence submitted by the Appellant in support of her appeal. As such,
the RAD must proceed without a hearing, and the Appellant’s request for an
oral hearing is denied. [Emphasis added]
[7]
Counsel for Ms. Sow raises three issues for the
Court’s consideration. Mr. Mangalji says that the RAD adopted a wrong standard
of review, that it misapplied section 110(4) of the IRPA when it declined to
receive evidence on the issue of Ms. Sow’s identity and it erred by failing to
consider a request for an oral hearing. In my view, there is merit to each of
these concerns and, notwithstanding the evident deficiencies in Ms. Sow’s case,
the matter must be remitted for redetermination.
[8]
For the reasons given by Justice Michael Phelan
in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 at
paras 25-34, [2014] F.C.J. No. 845, the standard of review to be applied to the
issue of the scope of the RAD’s appellate authority is that of correctness.
This is an issue of sufficient importance to the legal system and to the
equitable treatment of refugee claimants that it does not permit any deviation
from a uniform standard.
[9]
On the issue of the RAD’s exclusion of evidence
under section 110(4) of the IRPA, I concur with the reasons given by Justice
Jocelyne Gagné in Singh v Canada (Citizenship and Immigration), 2014 FC
1022 at paras 36-42, 246 A.C.W.S. (3d) 433, that the standard of judicial
review is that of reasonableness.
[10]
I agree with counsel for the Applicant that the
RAD erred in adopting a reasonableness standard of review; the RAD has a more
robust appellate jurisdiction than the one it applied. Here I am guided by the
considered view of Justice Phelan in Huruglica, above. Justice Phelan found
that the policy rationale for deference by the RAD is not sustainable except in
relation to credibility issues (see para 37). He also observed that the RAD
owed no deference to the RPD based on relative expertise – both were qualified
to assess evidence in refugee cases (see para 49). He concluded by
characterizing the RAD’s appellate authority in the following terms:
[54] Having concluded that the RAD
erred in reviewing the RPD’s decision on the standard of reasonableness, I have
further concluded that for the reasons above, the RAD is required to conduct a
hybrid appeal. It must review all aspects of the RPD’s decision and come to an
independent assessment of whether the claimant is a Convention refugee or a person
in need of protection. Where its assessment departs from that of the RPD, the
RAD must substitute its own decision.
[11]
In Njeukam v Canada (Citizenship and
Immigration), 2014 FC 859, 247 A.C.W.S. (3d) 429, Justice George Locke
described the standard of review applicable to RAD appeals as follows:
[13] Considering again the decision of
Justice Phelan in Huruglica, above, I am of the view that the RAD erred
in finding that the standard of review for the RPD’s decision is that of
reasonableness.
[14] Except in cases where the
credibility of a witness is critical or determinative or when the RPD has a
particular benefit from the RAD to draw a specific conclusion, the RAD must not
give any deference to the analysis of the evidence made by the RPD: see Huruglica,
at paras 37 and 55. The RAD has as much expertise as the RPD and maybe more
with respect to the analysis of the relevant documents and the representations
from the parties.
[15] Under section 111(1) of the IRPA,
the RAD has the right substitute the decision that should have been made.
Therefore, the RAD must make an independent analysis of the evidence to form
its own opinion.
Also
see Bahta v Canada (Citizenship and Immigration), 2014 FC 1245 at
para 14, 248 A.C.W.S. (3d) 419, and Spasoja v Canada (Citizenship and Immigration), 2014 FC 913 at paras 7-46, 2014 CarswellNat
3617.
[12]
The RAD declined to reconsider the RPD’s
qualitative analysis of Ms. Sow’s birth certificate because the RPD had
first-hand access to the document and because it also had a degree of expertise
in assessing such a document.
[13]
With respect, the RPD enjoyed no adjudicative
advantage over the RAD in assessing this evidence and it should have examined
the birth certificate independently. The RAD acknowledged its status as a
specialized tribunal in the area of refugee protection and had the entire
documentary record before it. The birth certificate was of central importance
to Ms. Sow’s assertion of identity and it was wrong for the RAD to defer to the
RPD’s finding about its facial condition. Ms. Sow was entitled to a first-hand
assessment of this evidence and she did not receive one.
[14]
The RAD’s rejection of at least some of the
evidence tendered on behalf of Ms. Sow was unreasonable. Section 110(4) of the
IRPA must be applied by the RAD with a degree of flexibility commensurate with
the surrounding circumstances.
[15]
On this issue, I strongly endorse the views of
Justice Gagné in Singh, above, at paras 55-58:
[55] Accordingly, in order for there to
be a “full fact-based appeal” before the RAD, the criteria for the
admissibility of evidence must be sufficiently flexible to ensure it can occur.
Often, the evidence at stake will be essential for proving the factual basis of
the errors the claimant alleges were made by the RPD. This consideration becomes
all the more pertinent in light of the strict timelines a claimant now faces
for initially submitting evidence before the RPD. A claimant now has 50 days to
present all documents from the date he or she made the claim; the previous
legislative scheme required the documents 20 days prior to a hearing, which, on
average, took much longer to take place. When the RPD confronts a claimant on
the weakness of his evidentiary record, the RAD should, in subsequent review of
the decision, have some leeway in order to allow the claimant to respond to the
deficiencies raised.
[56] But there is more. 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.
[57] In sum, I am of the view that it
was unreasonable for the RAD to strictly apply the Raza test in
interpreting subsection 110(4) of the Act all the while failing to appreciate
that its role is quite different from that of a PRA officer.
[58] In order to achieve statutory
coherence, in that the RAD would be able to hear fleshed out appeals of
questions of fact and of mixed fact and law, the main issue is whether the
evidence “was not reasonably available, or that the person could not reasonably
(or normally according to the French version) have been expected in the
circumstances to have presented.”
[16]
The RAD was wrong to import the approach to the
receipt of new evidence recognized in Raza v Canada, 2007 FCA 385,
[2007] F.C.J. No. 1632. An appeal to the RAD is not the equivalent of a Pre-Removal
Risk Assessment [PRRA]. Indeed, it has been repeatedly held in this Court that
a PRRA is not an appeal from an unfavourable refugee determination. The reasons
for strictly limiting the receipt of new evidence in the context of a PRRA are mostly
absent from those that apply to an appeal from a refugee determination,
particularly given the truncated timeline for completing the underlying RPD
proceeding.
[17]
The RAD’s assessment of the fresh evidence
tendered on behalf of Ms. Sow is difficult to follow. Paragraph 15 of the
decision states that “documents (a) through (d) are not
evidence that arose after the rejection of the Appellants’ [sic] refugee claims
[sic]”. In the next paragraph documents (c) and (d) are said to be
emails “which arose after the rejection of the claim”.
Suffice it to say, it cannot be both.
[18]
The RAD also rejected documents (c) and (d) on
the basis that they were not relevant to prove Ms. Sow’s identity. It is
certainly correct that those emails did no more than establish the failed
attempts by counsel to obtain better identity documentation. In that sense,
they did not add anything substantive to prove Ms. Sow’s identity. But that is
not to say that the emails were irrelevant. Section 106 of the IRPA clearly
states that evidence bearing on unsuccessful steps taken to obtain identity
documentation is relevant and may overcome a concern about the adequacy of what
was produced. This seems to me a recognition that, in some parts of the world,
cogent identity documentation may be difficult, if not impossible, to obtain
and legitimate refugee claimants ought not to be prejudiced by that fact alone.
[19]
I accept the point made by counsel for the
Respondent that much more could have been done to attempt to overcome the
identity concerns of the RPD and the RAD. But that point does not displace the
obligation of the RAD to apply the required standard of review to the evidence
or to reasonably accept and assess the evidence put to it.
[20]
Having regard to the above, I need not deal with
the argument that the RAD failed to address Ms. Sow’s request for an oral
hearing. The fact that the RAD contradicted itself on the face of its decision
may well reflect nothing more than a failure to proof-read the decision.
[21]
For the foregoing reasons, this application for
judicial review is allowed. The matter will be remitted for reconsideration on
the merits by a different decision-maker. Counsel for Ms. Sow has
proposed three questions for certification. Having regard to my disposition of
the application, those questions are moot. The Respondent did not submit a
question for certification and, in the result, no question is certified.
Email this Content