Docket: IMM-6277-14
Citation:
2015 FC 500
Montréal, Quebec, April 20, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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AHMED ALI
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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]
This is an application for judicial review of a
decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee
Board of Canada denying an appeal of a decision of the Refugee Protection
Division (RPD) which denied the applicant’s claim for refugee status. The RPD
cited a number of important inconsistencies between the applicant’s testimony
and various prior statements he had made and documents he had submitted. Based
on these inconsistencies, the RPD reached several conclusions of a lack of
credibility in the applicant’s allegations.
[2]
The RAD dismissed the applicant’s appeal without
a hearing, finding no errors in the RPD’s decision.
[3]
In the present application, the applicant
focuses his argument mainly on the standard of review applied by the RAD in
reviewing the RPD's decision. The RAD applies reasonableness as the standard of
review.
[4]
The issue of the appropriate standard of review
to be applied by the RAD in an appeal from a decision of the RPD, and the role
of the RAD generally, have been discussed in a number of recent decisions of
this Court. Lists of relevant decisions are provided in Allalou v Canada
(Citizenship and Immigration), 2014 FC 1084 at para 14 (Allalou),
and Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at para
32 (Akuffo).
[5]
As discussed in some depth by Justice Luc
Martineau in Alyafi v Canada (Citizenship and Immigration), 2014 FC 952,
there is some disagreement in this Court’s recent decisions concerning the role
of the RAD. As illustrated by Justice Jocelyne Gagné in Akuffo at paras
17 and following, one area of disagreement concerns the degree of deference
that should be shown by this Court in reviewing the standard of review applied
by the RAD on an appeal from the RPD.
[6]
The applicant argues that applying the
reasonableness standard in the context of an appeal was an error that should be
corrected by this Court. The applicant asserts that reasonableness is a
standard of review that applies to judicial reviews, not appeals. The applicant
also argues that the RAD must conduct an independent analysis of the evidence
and form its own opinion, rather than simply consider the reasonableness of the
RPD’s opinion. Support for this argument can be found in Huruglica v Canada
(Citizenship and Immigration), 2014 FC 799 at paras 47, 54-55 (Huruglica)
and Allalou at para 17. The applicant also cites my decision in Yetna v
Canada (Citizenship and Immigration), 2014 FC 858 in which I ruled that
deference is owed by the RAD to the conclusions of the RPD only in “cases in which the credibility of a witness is critical or
determinative, or where the RPD enjoys a particular advantage over the RAD in
reaching a specific conclusion” (para 17).
[7]
The respondent argues that the RAD is an expert
tribunal interpreting its home statute and that this Court should apply Dunsmuir
v New Brunswick, 2008 SCC 9, and show deference to the RAD’s choice of
reasonableness as the standard of review for its appeal. The respondent also
argues that the RPD’s conclusions concerning inconsistencies between the
applicant’s testimony and his previous statements are closely tied to witness
testimony and were critical to the RPD’s decision, and therefore it was
appropriate for the RAD to defer to these conclusions by the RPD.
[8]
In my view, it is not necessary that I decide
the standard of review issue because I am satisfied both (i) that the RAD’s
analysis was reasonable, and (ii) that the RAD’s analysis respected the
standards asserted by the applicant. In my view, the RAD did conduct a
considerable amount of independent analysis of the evidence in that it looked
closely at and considered the evidence. It is true that the RAD deferred to
several of the RPD’s conclusions concerning the credibility of the applicant
and various statements and documents he relied upon. However, that was
appropriate in most instances because those conclusions were based largely on
testimony from the applicant. Despite certain inconsistencies in the
jurisprudence concerning the standard of review to be applied by the RAD, there
does seem to be a consensus that the RAD should defer to the RPD on credibility
issues where no hearing is held before the RAD: Akuffo at para 34.
[9]
The applicant cites certain findings by the RPD
that were not based on witness testimony and in respect of which the RAD did
not conduct an independent analysis. One might debate the extent of analysis
that is sufficient to satisfy the RAD’s duty to independently assess the
documents in evidence. However, in the end, and in light of the many important
inconsistencies between the applicant’s testimony and his previous statements
cited by the RAD, it is my view that there is no reasonable likelihood that the
RAD’s decision would have been any different even if it had applied a different
standard of review and conducted a more thorough independent analysis of the
documentary evidence. Some of the important inconsistencies cited by the RAD
are:
- Upon arrival in
Canada, the applicant indicated he was on vacation to visit friends and
had no fears that would merit a refugee claim;
- When women’s clothes
were found in his luggage, the applicant acknowledged that he was here to
see his wife, but indicated that he did not want to stay in Canada. The
applicant indicated that he wished to make a refugee claim only after
learning he would not be granted entry to Canada;
- In an interview
the day after his arrival in Canada, the applicant indicated that a Muslim
priest in Pakistan, upon hearing that the applicant’s wife had been seen
leaving a hotel with another man (suggesting an illicit relationship), had
ordered him to leave his wife, but later the applicant alleged that the
priest had ordered that he kill his wife;
- In the same
interview the day after arriving in Canada, the applicant indicated that
the priest was the only person he feared, but he later testified that he
was also sought by the police in Pakistan and that he had known this prior
to coming to Canada.
[10]
For all these reasons, I conclude that the
present application for judicial review should be dismissed.
[11]
The applicant asks that I certify a serious
question of general importance concerning the standard of review to be applied
by the RAD in an appeal from the RPD. However, in light of my finding that the
standard of review applied by the RAD was not determinative, I decline to do
so.
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