Docket: IMM-2906-14
Citation:
2015 FC 621
Ottawa, Ontario, May 11, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ILHAN OZDEMIR
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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
[1]
I have concluded that the decision of the
Refugee Appeal Division [RAD] under review must be set aside.
[2]
The RAD, in my view, clearly applied the “reasonableness” standard of review applicable to
judicial review proceedings and not, in my view, to RAD proceedings. This is evident
throughout the decision, but nowhere more so than at paragraph 88 where the RAD
uses the wording of the Supreme Court of Canada in Dunsmuir v New Brunswick,
2008 SCC 9 when it writes: “For these reasons, the RAD
finds that the RPD’s rejection of the Appellant’s refugee claim falls within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and the law.”
[3]
Notwithstanding the able submission of counsel
for the respondent, I prefer the decision of Justice Phelan in Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799 [Huruglica]
and those that have followed it which have held that the standard of appeal to
be used by the RAD is not that of reasonableness.
[4]
The respondent submits that even if the RAD used
the wrong standard, this application must fail as the RPD decision turned on
its finding that the applicant lacked credibility and the RAD acted
appropriately in giving deference to that finding. Moreover, the respondent
submits that the RAD conducted its own credibility analysis. I am unable to
accept that submission.
[5]
In my view, this decision is much like that
which was overturned by Justice Noël in Khachatourian v Canada (Minister of
Citizenship and Immigration), 2015 FC 182. In both cases, the RAD did not
make its own analysis of the case but simply reviewed the RPD’s credibility
determinations and found them reasonable. Throughout the section on
credibility the RAD states that the RPD’s credibility findings were “reasonable” and never does its own analysis as to
whether it would have reached a similar conclusion based on the evidence. I
add that there was nothing in the RPD’s credibility analysis that turned on the
demeanour of the applicant in the witness box. Rather, the assessment of
credibility was based on omissions and discrepancies between his Basis of Claim
and his oral testimony. Accordingly, the RAD was in as a good a position as
the RPD to make its own determination of the applicant’s credibility based on
the recording of the hearing, the documents, and the explanation offered to the
RPD.
[6]
In light of these findings, it is not necessary
to provide any opinion on whether the RAD erred in refusing to accept the “new” evidence offered by the applicant. I would note
however, that in my view, it was an error to merely accept the cousin’s
positive RPD decision as “case law” and not
evidence. It, and specifically the reasons of the RPD, is evidence that the
cousin’s testimony of certain events was found credible and accepted. To the
extent that the same events were germane to this applicant’s case, or were
referenced in the cousin’s letter, that evidence ought to have been accepted
and considered.
[7]
The applicant proposed that the same questions
certified in Huruglica be certified if the application was dismissed.
Given the disposition of the application, no question will be certified.
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