Docket: IMM-578-14
Citation:
2015 FC 536
Toronto, Ontario, April 27, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SHERIKA COLEENA
GREEN AND
CASEY LANAE BRYAN
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the January 13, 2014 decision of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board. The RAD dismissed the applicants’ appeal of the
decision of the Refugee Protection Division [RPD] which determined that the
applicants were not Convention refugees or persons in need of protection.
[2]
For the reasons that follow, I find that the RAD
erred, regardless of the standard of review that is applicable by this Court to
RAD decisions and regardless of the standard of review that the RAD should
apply in the context of appeals from the RPD.
Background
[3]
The applicants, Sherika Coleena Green and her
minor daughter, Casey Lanae Bryan, are citizens of Jamaica. Their refugee claim
is based on a fear of Ms Green’s ex-boyfriend, and Casey’s father, Hannif
Bryan. Mr Bryan became abusive to Ms Green in 2007 and the abuse escalated
while she was pregnant. Mr Bryan’s conduct included physical abuse, harassment
and threats to Ms Green, harassment of Ms Green’s mother, and two attempts to
abduct Casey from her day care in 2011. Ms Green also recounted two knife
attacks by unknown assailants in 2012.
[4]
Ms Green contacted the police in May 2010, and
was initially told there was nothing they could do. One officer subsequently
told her that she could pursue a restraining order in family court. She started
the process but later abandoned it. Ms Green recounts that she contacted the
police on several occasions.
[5]
The applicants claimed refugee protection in Canada in 2013. In June 2013, the RPD found Ms Green not to be completely credible and
determined that state protection would be available to the applicants in Jamaica. The RAD dismissed the applicants’ appeal.
The RAD decision
[6]
After first determining not to admit the
applicant’s affidavit in accordance with subsection 110(4) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], because it did not
conform with procedural requirements and essentially restated the same
information that was before the RPD, the RAD considered the standard of review
it should apply. The RAD applied the factors set out in Newton v
Criminal Trial Lawyers’ Assn, 2010 ABCA 399 at para 44. The RAD
considered the difference between the RPD, a tribunal of first instance given
its authority to hear testimony, review evidence and determine a claim for
refugee protection on the merits, and the RAD, which was created to review the
decisions made by the RPD on questions of law, fact or mixed fact and law, with
the ability to substitute a different determination where appropriate. The RAD
noted that the RPD held a hearing on the totality of the evidence, heard from
Ms Green directly, and was in the best position to assess credibility and to
make findings on issues of fact, and mixed law and fact. In contrast, the RAD’s
authority to consider evidence is limited. The RAD concluded that it should
defer to the RPD findings on questions of fact and review the decision on the
standard of reasonableness.
[7]
The RAD found, however, that the RPD’s
credibility findings were not reasonable and that the RPD had only paid lip
service to the Chairpersons Guideline 4: Women Refugee Claimants Fearing
Gender-Related Persecution [Gender Guidelines].
[8]
The RAD then noted that state protection can be
determinative regardless of credibility findings and concluded that the RPD
reasonably found that there was adequate state protection in Jamaica and that the applicants had not rebutted the presumption.
The Issues
[9]
The applicants argue that the RAD erred in three
respects: by applying the wrong standard of review to the decision of the RPD;
by making an unreasonable conclusion regarding the RPD’s assessment of the
availability of state protection; and, by excluding the applicants’ affidavit
as new evidence due to an overly strict interpretation of subsection 110(4) of
the IRPA.
The Applicants’
Position
[10]
With respect to the standard of review to be
applied by this Court to the RAD decision on the standard of review it should
apply, the applicants submit that correctness is the appropriate standard. This
is not a matter of the RAD reviewing its own statute, but rather a question of
more general interest regarding the deference owed by an appellate tribunal to
an inferior decision-maker (Dunsmuir v New Brunswick, 2008 SCC 9 at para
60).
[11]
With respect to the standard of review to be
applied by the RAD to decisions of the RPD, the applicants argue that the RAD
erred in applying the standard of reasonableness. No deference is owed to the
RPD because the RAD has greater expertise, independence, and authority to
conduct a de novo hearing and grant appeals.
[12]
The applicants rely on the decision in Huruglica
v Canada (Citizenship and Immigration), 2014 FC 799 [Huruglica], and
other cases which have followed it, as having established that the common law
principles of judicial review are not appropriate in the context of the RAD’s
role vis-à-vis the RPD. The applicants argue that the RAD was intended to be an
appeal and that the RAD would duplicate the role of the Federal Court on judicial
review if it only reviewed RPD decisions on the reasonableness standard.
[13]
The applicants argue that the RAD’s decision is
not coherent or intelligible with respect to the key issues of credibility and
state protection. Given that the RAD found that the RPD’s adverse credibility
findings were not reasonable, the RAD should have recognized that those same
flawed credibility findings could not support the RPD’s discounting of Ms
Green’s evidence about her efforts to seek police protection.
[14]
The applicants further argue that both the RAD
and the RPD ignored corroborating evidence regarding the applicants’ efforts to
obtain state protection and ignored contradictory evidence of state protection.
The RPD ignored Ms Green’s testimony that the police letter was not accurate
with respect to the advice the police said had been provided and failed to
consider that this letter, on which the Board relied, was sent after the
applicant had left Jamaica. The RAD erred in accepting that the RPD had
considered contradictory evidence.
The Respondent’s
Position
[15]
With respect to the standard of review to be
applied by this Court in reviewing the decision of the RAD, the respondent
disagrees with the Court in Huruglica, which found that this Court
should review the RAD’s determination of the standard of review on the correctness
standard and submits that the Court should apply the reasonableness standard.
[16]
The respondent notes that the RAD is a
specialized tribunal with expertise. Findings of fact and findings of mixed
fact and law made by the RPD are reviewed by this Court on the standard of
reasonableness and there is no reason why the same standard should not apply to
the standard of review findings of the RAD.
[17]
The respondent submits that although the
determination of the appropriate standard of review is a legal question,
questions which concern the interpretation of a tribunal’s own statute and the
tribunal’s own function are reviewable on the reasonableness standard (Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association, 2011
SCC 61 at paras 45-46 [Alberta Teachers’ Association]). A contextual
analysis also leads to the conclusion that the Court should apply the
reasonableness standard.
[18]
With respect to the standard of review that the
RAD should apply when reviewing a RPD decision, the respondent submits that the
standard should be reasonableness.
[19]
Reasonableness is the presumptive standard for
appellate administrative tribunals, particularly when interpreting their home
statute or a statute closely connected to their function and with which they
are familiar (Budhai v Canada (Attorney General), 2002 FCA 298; Canada
(Attorney General) v White, 2011 FCA 190; Dunsmuir at paras 47-49; Alberta
Teachers’ Association at para 39; Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras
11-17; Canadian Artists’ Representation v National Gallery of Canada, 2014
SCC 42 at para 13). The respondent notes that none of the exceptions exist to
justify a departure from the presumptive standard of reasonableness.
[20]
The respondent agrees with the jurisprudence
that has found that, however the standard of review is characterised, the RAD
should show deference to the RPD when reviewing questions of fact and of mixed
fact and law, such as credibility findings and evaluation of documentary
evidence (Khachatourian v Canada (Citizenship and Immigration), 2015 FC
182 at para 29 [Khachatourian]).
[21]
With respect to the RAD’s findings that the RPD
erred in its credibility findings but did not err in its state protection
finding, the respondent argues that there was no inconsistency by the RAD. The
respondent submits that the RAD found that only one specific credibility
finding was not reasonable. The other findings were reasonable and were relied
on to find that the applicants had not rebutted the presumption of state
protection. The onus is on the applicants to establish that they have made
efforts to obtain state protection which were to no avail (Canada (Minister
of Employment and Immigration) v Villafranca, [1992] FCJ No 1189 at para 7
(FCA); Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at para 52; Zhuravlvev
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 507 at
paras 19 and 31; Lozada v Canada (Minister of Citizenship and Immigration), 2008
FC 397 at para 28). The RAD reasonably found that the RPD reviewed the
documentary evidence and did not err in finding that Jamaica was providing
adequate state protection to its citizens. Nor did the RAD err in upholding the
RPD’s finding that the applicants did not rebut the presumption of adequate
state protection for victims of domestic violence in Jamaica.
What standard of review applies to this Court’s review of the RAD
decision?
[22]
Over the last several months there have been many
cases that have addressed the standard of review to be applied by this Court to
decisions of the RAD on the issue of the standard of review the RAD should use
in its consideration of appeals from the RPD. As noted by the applicant, in Huruglica
at paras 25-33, Justice Phelan provided a comprehensive analysis leading
him to the conclusion that this Court should review the RAD’s choice of
standard of review on the correctness standard. Other decisions took the same
approach including Iyamuremye v Canada (Citizenship and Immigration),
2014 FC 494 at para 20 [Iyamuremye]; Alvarez v Canada
(Citizenship and Immigration), 2014 FC 702 at para 17 [Alvarez]; Yetna
v Canada (Citizenship and Immigration), 2014 FC 858 at paras 14-15 [Yetna];
Triastcin v Canada (Citizenship and Immigration), 2014 FC 975 at para
18-19 [Triastcin]; Tamayo v Canada (Citizenship and Immigration), 2014
FC 1127 at para 18 [Tamayo]; and Bahta v Canada (Citizenship and
Immigration), 2014 FC 1245 at para 10 [Bahta].
[23]
More recently, Justice Gagné also conducted a
comprehensive analysis in Akuffo v Canada (Citizenship and Immigration), 2014
FC 1063 at paras 17-26 [Akuffo], and reached the contrary
conclusion: that this Court should apply the reasonableness standard to the
review of decisions of the IAD on the issue of its standard of review. In Akuffo,
Justice Gagné found that the question of the standard of review to be applied
by the RAD is not a question of central importance to the legal system even if
the question may fall outside the RAD’s expertise, and that there are no other
circumstances that would justify departing from the standard of reasonableness
which is the presumptive standard of review (see also Justice Martineau’s
analysis in Djossou v Canada (Citizenship and Immigration), 2014
FC 1080 at paras 13-37 [Djossou] where he also concluded that
this Court should apply the reasonableness standard).
[24]
The issue remains to be clarified once and for
all by the Federal Court of Appeal.
[25]
In the present case, whether I apply the
reasonableness standard or correctness standard makes no difference. The errors
in the decision of the RAD require that the judicial review be allowed, as
explained below. However, I have applied the reasonableness standard.
What standard of
review should the RAD use in considering the appeal of a decision of the RPD?
[26]
The jurisprudence has consistently held that it
is a reviewable error for the RAD to perform a judicial review function and
apply the reasonableness standard to the RPD’s decision. Rather, the RAD should
perform its appeal function; Huruglica at para 54; Iyamuremye at
para 38; Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 at
para 10; Guardado v Canada (Citizenship and Immigration), 2014 CF
953 at para 4; Diarra v Canada (Citizenship and Immigration),
2014 FC 1009 at para 29; Djossou at para 37; Bahta at paras
11-16; Aloulou v Canada (Citizenship and Immigration), 2014 FC 1236 at
paras 52-59 [Aloulou]; Bui v Canada (Citizenship and Immigration), 2014
FC 1145 at para 22 [Bui]; Genu v Canada (Citizenship and Immigration),
2015 FC 129 at para 30 [Genu]; Alvarez at para 30, and
the list of cases continues to grow).
[27]
Some of the jurisprudence supports the view that
on questions of credibility, the RAD may or should defer to the RPD because the
RPD has heard the witnesses directly, had an opportunity to probe their
testimony or has had some advantage not enjoyed by the RAD; Huruglica at
para 55; Iyamuremye at para 40; Akuffo at para 27; Alvarez
at para 33; Njeukam, v Canada (Citizenship and Immigration), 2014
FC 859 at para 14; Allalou v Canada (Citizenship and Immigration), 2014
FC 1084 at paras 17-20; Sajad v Canada (Citizenship and Immigration),
2014 FC 1107 at paras 19-20, 26; Singh c Canada (Citizenship and
Immigration), 2014 FC 1208 at para 25; Yin v Canada (Citizenship
and Immigration), 2014 FC 1209 at para 34; Bui at para
25; Genu at paras 26 and 28). As Justice Noel noted in Khachatourian
at para 31, the RAD should assume its appellate role and the same level of
deference may not be applicable to credibility findings in the appeal process
as in a judicial review.
[28]
There remains some nuances in the jurisprudence regarding
whether the RAD must conduct an independent analysis in order to confirm the
RPD decision or set it aside and substitute a decision (Tamayo at para
21; Huruglica at para 55; Yetna at paras 16-20; Njeukam at
para 14; Aloulou at para 63).
[29]
In this case, the RAD concluded that it should
use the reasonableness standard in its consideration of the RPD decision and conducted
more of a judicial review rather than an appeal. Although the RAD erred in its
approach to its role, the RAD did not have the guidance of any jurisprudence
from this Court when it made this determination.
[30]
Although the RAD erred on its application of the
standard of review, a more practical approach to the issues raised by the
applicants in this judicial review is warranted, rather than simply determining
the application on this basis. The Court of Appeal will provide welcome
guidance on the standard of review and the appellate role to be applied by the
RAD in due course.
[31]
As noted above, the jurisprudence generally supports
deference by the RAD to the RPD on findings credibility. In the present case,
despite finding that the reasonableness standard would be applied, the RAD did not
defer to the RPD on the credibility findings. The RAD found the credibility
findings – at least the finding with respect to the omission in Ms Green’s
testimony and arguably the broader findings – to be unreasonable. So even if
the reasonableness standard of review should not have applied, the RAD’s finding
would have been the same; the credibility findings would have been found to be
in error as not supported by the evidence.
[32]
The RAD did, however, defer to the RPD with
respect to the RPD’s assessment of state protection and its finding that the
applicants failed to rebut the presumption of the adequacy of state protection.
Did the RAD err
in making an unreasonable conclusion regarding the RPD’s assessment of the
availability of state protection?
[33]
The RAD found that the RPD’s determination of
adequate state protection and the applicants’ failure to rebut the presumption
of adequate state protection was reasonable, despite that this determination
was based upon the RPD having found that Ms Green was not credible with respect
to her efforts to seek state protection. The RAD cited portions of the RPD’s
decision in its own decision, both as quotations and as paraphrased, where the
RPD clearly states that the state protection findings were based on the credibility
findings.
[34]
The RAD found that an omission from Ms Green’s
testimony about her fear that Mr Bryan would kill her daughter was not a major
credibility determinant, given the explanation provided by Ms Green. The RAD
noted “the RPD’s finding that the appellants lack
credibility is, therefore, insufficiently supported by the evidence.”
[35]
Although the respondent submits that the RAD
only found an error with respect to one specific credibility finding, I am not
persuaded that this is so. The RAD specifically identified the omission from Ms
Green’s testimony and her explanation for the omission as an unreasonable
credibility finding, but the RAD’s other comments are more general and fail to
clarify whether the RAD accepted some credibility findings while rejecting
others or found that, as a whole, the RPD’s credibility findings were not
reasonable. Given the RAD’s finding that the RPD failed to consider the Gender
Guidelines which have a bearing on the assessment of credibility more
generally, I am more inclined to the view that the RAD found an error in the
RPD’s assessment of the applicant’s overall credibility.
[36]
The RAD noted that the RPD acknowledged Ms
Green’s claims that she was a victim of domestic abuse. Therefore, the RPD was
required to take the Gender Guidelines into account and “not just pay lip service as appears to be the case”.
The RAD noted the example of the RPD telling Ms Green that it was up to her to
settle her nerves, after she had explained that she was nervous in providing
her testimony.
[37]
After having found that the credibility findings
were unreasonable, there was no basis for the RAD to uphold the RPD’s finding
that the applicants failed to rebut the presumption of adequate state
protection.
[38]
The RAD found that the RPD had considered the
effectiveness of the state’s efforts to address domestic assault in Jamaica and that the RPD had considered the contradictory evidence. The RAD stated that: “The RPD’s analysis on the issue of state protection is
thorough considering that an oral decision was rendered, is mindful of the
principles of state protection and mindful of the Appellants’ particular
profile and situation”.
[39]
In reaching this determination, the RAD referred
to the RPD’s credibility findings. For example, the RPD found that Ms Green was
advised by the authorities to go to the court office and have a “threat summons” taken out against Mr Bryan. Ms Green
had testified that she was not advised to do so and was not aware that this was
an option. The RAD noted: “However, as previously
stated, based on the panel’s credibility findings, the panel does not accept
the principal claimant’s assertion that she was not advised by the police to
have a threat summons taken out against Mr Bryan.” It is not clear to me
whether the RAD is referring to itself as “the panel” or
to the RPD as “the panel”, given its use of “the principal claimant” as opposed to “the appellant” as used in other places in the RAD
decision, and given its use of the present tense, which could suggest it was
referring to itself as the “panel”.
[40]
The RAD also noted that the RPD had found that
Ms Green was advised by a family friend to make formal reports of every
incident to the police and there was no evidence that more than one final
report was made. The RPD did not find it credible that Ms Green reported to the
police as she had claimed.
[41]
The RAD simply reiterates the RPD’s credibility
findings without any independent analysis, despite finding earlier in its
decision that the RPD’s finding that the “appellants
lack credibility” was not sufficiently supported by the evidence.
[42]
The applicants had also submitted to the RAD
that, in accordance with the Gender Guidelines, the failure to seek help from
other NGOs was not relevant to the rebuttal of state protection. The RAD
acknowledged this, but found that the RPD had considered the situation of
victims of domestic violence in Jamaica and “while the
RPD did not elaborate on contradictory evidence, a careful read indicated that
the RPD considered contradictory evidence”.
[43]
Even if the reasonableness standard were
appropriate, this conclusion or finding by the RAD is not supported in any way
by a “careful read” of the RPD decision. The RPD
decision is three pages, of which one page deals with state protection. The RPD
did not allude at all to contradictory evidence. Rather it found that the
police had given her advice but she did not follow up. In addition, the RAD did
not conduct any independent assessment of the evidence with respect to the
adequacy of state protection or the applicant’s efforts to seek state
protection.
Conclusion
[44]
As noted above, the standard of review to be
applied by the Court in its judicial review of decisions of the RAD and the
role of the RAD and the standard of review to be applied by the RAD to appeals
from the RPD remains to be clarified by the Court of Appeal.
[45]
If this application for judicial review of the
decision of the RAD is considered on the standard of review of reasonableness,
I find that the decision is not reasonable as it is not intelligible or
justified by the record. The RAD erred in performing a judicial review type
function rather than an appellate function. Moreover, the RAD erred by relying
on credibility findings, which it found to be unreasonable, to support its
finding that the applicant had not rebutted the presumption of state
protection, and in failing to independently assess the adequacy of state
protection and the applicants’ efforts to seek state protection.
[46]
In the present case, the result would be the
same whether a correctness standard or reasonableness standard were applied by
the Court to the judicial review. No question was proposed for certification.
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