Docket: IMM-5603-14
Citation:
2015 FC 840
Ottawa, Ontario, July 9, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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XIA
LI
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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 under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (Act) of the June 27, 2014 decision of the Refugee Appeal Division (RAD)
of the Immigration and Refugee Board, which allowed the appeal by the
respondent, set aside the decision of the Refugee Protection Division (RPD),
and determined that the applicant is not a Convention refugee or a person in
need of protection. The applicant claims that this decision was unreasonable
and that the RAD should have given deference to the RPD’s findings, given that
they were based on credibility.
[2]
For the following reasons, the application for
judicial review is dismissed.
I.
Background
[3]
The applicant is Ms. Xia Li, a citizen of the
People’s Republic of China. She claims to have begun to attend a Christian
house church in March 2013 in the Hebei province of China. On August 4, 2013,
the house church was raided by the Public Security Bureau. Ms. Li was able to
escape and went into hiding. She was smuggled out of China and into Canada where she arrived on November 17, 2013. She made a refugee claim which was heard by
the RPD on January 31, 2014. Despite finding that the applicant was not a
credible witness, the RPD determined in an oral decision that she was a
Convention refugee because she was a practicing Christian in Canada and,
therefore, there was more than a mere possibility that she would face
persecution in China.
[4]
The respondent, the Minister of Citizenship and
Immigration, appealed this positive determination to the RAD, arguing that it
should set aside the RPD decision and substitute the determination that the
applicant was not a Convention refugee or a person in need of protection.
Alternatively, the Minister requested that the matter be referred back to the
RPD for redetermination. The RAD allowed the appeal and substituted for the RPD
decision its determination that the applicant was not a Convention refugee or a
person in need of protection.
II.
RAD Decision
[5]
The RAD noted that, despite finding that the
applicant was not a credible witness, the RPD found that she had engaged in
Christian activities in Canada and that she could not continue to engage in
those activities if she were to return to Hebei province in China. On that
basis, the RPD made a positive determination that the applicant was a
Convention refugee.
[6]
The RAD followed Iyamuremye v Canada (Citizenship
and Immigration), 2014 FC 494 [Iyamuremye] in determining that the
proper standard of review it should apply was reasonableness for questions of
fact and mixed fact and law and correctness for questions of law.
[7]
The RAD stated that the determinative issue was
whether the RPD failed to assess properly the evidence of the applicant’s
Christian activities in Canada in light of its adverse credibility findings. In
other words, was there a reasonable basis for the RPD to conclude that the
applicant would continue to practice Christianity in China or would reasonably
be perceived to be a Christian in China? The RAD noted that the RPD made
numerous adverse credibility findings, none of which were contested by the
applicant. The RPD found the applicant to have lied, fabricated evidence and attempted
to mislead the panel. The RPD also drew adverse credibility findings concerning
her testimony as to her Christian activities in Canada. The RPD concluded that
the applicant throughout her testimony was not a credible witness.
[8]
The RAD found those findings compelling in
assessing the genuineness of the applicant’s Christian activities in Canada and
her intention to continue her practice of Christianity in China. Although the
RAD agreed, as the RPD had stated, that a claimant can be both a liar and a
refugee, the RPD failed to explain how being engaged in Christian activities in
Canada overcame all its compelling adverse credibility findings to support a
determination she would continue to practice Christianity if she returned to
China.
[9]
While the RAD noted that the applicant had
introduced into evidence before the RPD a baptismal certificate and a letter
from her church in Canada to corroborate her religious activities in Canada, the
RAD found that attendance at church does not speak to a person’s convictions
and did not attest to her motivation to continue to practice Christianity in
China. The RAD found that the documents provided by the applicant did not
overcome the compelling adverse credibility findings made by the RPD. The RAD
also held that, more importantly, the RPD had found that the applicant lacked
credibility with regard to her testimony about her Christian activities in Canada.
The RAD held that this credibility finding directly undermined the genuineness
of these activities, particularly in light of the significant findings on her
general credibility.
[10]
The RAD found that the RPD’s overall
determination failed to address the significant credibility problems on the
record and was therefore unreasonable. On the basis of the totality of the
evidence, the RAD found that, on a balance of probabilities, the applicant
would not continue to practice Christianity in a church of her choice upon
return to China. Therefore, the applicant had not satisfied her burden of
establishing a serious possibility that she would be persecuted or that she
would be personally subjected to a risk to her life, to a risk of cruel and
unusual treatment or punishment, or to a danger of torture by any authority in
China. The RAD allowed the appeal and substituted its own determination that
the applicant was neither a Convention refugee nor a person in need of
protection.
III.
Issues
[11]
I would characterize the issues in this
application as the following:
A. Did the RAD apply the correct standard of review?
B.
Did the RAD err by allowing the appeal and
substituting its own decision for the RPD’s decision?
IV.
Analysis
A.
Did the RAD apply the correct standard of
review?
[12]
Before addressing the parties’ positions on
standard of review, it is useful to canvass some of this Court’s recent
jurisprudence on the issue.
[13]
As noted by Justice Fothergill in Ngandu v
Canada (Citizenship and Immigration), 2015 FC 423, the law is not yet
settled as to the standard of review to be applied by this Court to the RAD’s
determination of its own standard of review. Some decisions of this Court have
applied the standard of correctness (see, for example, Justice Phelan’s
decision in Huruglica v Canada (Citizenship and Immigration), 2014 FC
799 at paras 25-34 [Huruglica]). Other decisions have concluded that this Court should
apply the standard of reasonableness when considering the RAD’s determination
of its own standard of review (see, for example, Justice Gagné’s decision
in Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at paras
17-26).
[14]
However, as observed by Justice Martineau in Djossou
v Canada (Citizenship and Immigration), 2014 FC 1080 at paragraph 37 [Djossou],
the Court can sometimes adopt a pragmatic approach to this issue, in
circumstances where the Court’s decision whether to apply the standard of
reasonableness or the standard of correctness, to the RAD’s identification of
its own standard of review, would not be determinative of the outcome of an
application for judicial review. This is a case in which the pragmatic approach
can be applied. As explained in more detail later in these Reasons, while the
RAD’s articulation of the standard of review as one of reasonableness is not consistent
with the applicable authorities (canvassed in part below), nothing turns on
this. The RAD expressed a more deferential standard than is supported by the
case law, and yet it still concluded that the RPD’s decision could not
withstand appellate review.
[15]
Decisions of this Court have expressed in
various ways the standard of review that should be employed by the RAD in considering
appeals from the RPD. Justice Shore has addressed this issue in a trilogy of
decisions in Iyamuremye, Alvarez v Canada (Citizenship and
Immigration), 2014 FC 702 [Alvarez], and Eng v Canada
(Citizenship and Immigration), 2014 FC 711. In Alvarez, at para 33,
Justice Shore expressed his conclusions as follows:
The Court agrees that the RPD, as the tribunal
of first instance, is owed a measure of deference with regard to its findings
of fact, and of fact and law. The RPD is better situated to draw such
conclusions as it is the tribunal of first instance, the trier of facts, having
the advantage of hearing testimony viva voce (Housen, above).
However, the RAD must nonetheless perform its own assessment of all of the
evidence in order to determine whether the RPD relied on a wrong principle of
law or misassessed the facts to the point of making a palpable and overriding
error. The idea that the RAD may substitute an original decision by a
determination that should have been rendered without first assessing the
evidence is completely inconsistent with the purpose of the IRPA and the case
law dealing with the virtually identical wording of subsection 67(2). The
Court finds that the RAD misinterpreted its role as an appeal body in holding
that its role was merely to assess, against a standard of reasonableness,
whether the RPD’s decision is within a range of possible, acceptable outcomes.
[16]
Justice Phelan addressed the standard of review
to be employed by the RAD as follows at paras 54 to 55 of Huruglica:
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.
In conducting its assessment, it can recognize
and respect the conclusion of the RPD on such issues as credibility and/or
where the RPD enjoys a particular advantage in reaching such a conclusion but
it is not restricted, as an appellate court is, to intervening on facts only
where there is a “palpable and overriding error”.
[17]
However, as noted by Justice Martineau in Djossou
at para 37, such decisions are consistent in concluding (regardless of the
standard of review adopted by this Court) that the RAD should not itself adopt
a judicial review standard when performing its appellate functions.
[18]
In both Alvarez and Huruglica, the
articulation of the standard of review is characterized by some level of
deference by the RAD to the factual findings of the RPD, particularly where
issues of credibility are engaged, but also by the importance of the RAD
conducting its own independent assessment.
[19]
Turning to the parties’ submissions, the
applicant refers to the Court’s jurisprudence to the effect that the RAD should
not conduct a judicial review, but should instead conduct a “hybrid appeal” by reviewing all aspects of the RPD
decision and coming to an independent assessment of whether the claimant is a
Convention refugee or a person in need of protection, except where the witness’
credibility is critical or determinative, in which case the RAD should defer to
the RPD. The applicant argues that, in this case, the determinative issue was
purely credibility and the RAD should have given deference to the RPD.
[20]
The respondent does not disagree with the
applicant’s position that the RAD should defer to the RPD on credibility
findings. The respondent’s position is that this is exactly what the RPD did in
this case and that, taking into account the adverse credibility findings, the
RPD decision would not withstand appellate review regardless of the standard of
review applied by the RAD. The RAD had selected a reasonableness standard based
on Iyamuremye, and Huruglica called for an even less deferential approach.
Therefore, the outcome would be identical regardless of the standard of review.
[21]
As such, the parties’ positions do not diverge
on the principles surrounding the standard of review applicable to credibility
findings.
[22]
However, the respondent further argued that the
RAD’s decision really turned on a matter of law, which the RAD was fully
empowered to correct on appeal, that error being the failure of the RPD to
apply correctly the law as to sur place claims. The respondent argues
that the RPD erred in concluding that, notwithstanding she was not a genuine
Christian, the applicant had a valid sur place claim because she
attended church in Canada.
[23]
The Court notes that the RAD adopted a standard
of reasonableness based on its reading of Iyamuremye. While the RAD’s
articulation of the standard is not consistent with the principles expressed in
that case and the subsequent jurisprudence as canvassed above, the Court’s
conclusion is that nothing turns on this. If anything, the RAD expressed a
more deferential standard than is supported by the case law, particularly if
one were to prefer the respondent’s position that the RAD was intervening on a
point of law, and yet it still concluded that the RPD’s decision could not
withstand appellate review.
[24]
In finding that nothing turns on the RAD’s
articulation of the applicable standard, I am conscious of the divergence in
the parties’ position on whether the RAD’s decision turns on a matter of
credibility, to which some deference is owed, or a matter of law to which a
less deferential standard applies. However, as explained below, the Court’s
conclusion is that the RAD’s decision is sustainable even if one were to adopt
the applicant’s position that the RPD’s decision is entitled to the degree of deference
associated with credibility findings.
B.
Did the RAD err by allowing the appeal and
substituting its own decision for the RPD’s decision?
[25]
The applicant’s position is that the RPD found that,
even though Ms. Li was not credible on all fronts, she was still a sur place
refugee based on the evidence of her Christian activities in Canada. The
applicant refers the Court to Mohajery v Canada (MCI), 2007 FC 185, at
paras 31-32 [Mohajery]; Yin v Canada (MCI), 2010 FC 544, at paras
89-90, 91, 94 [Yin]; and Huang v Canada (MCI), 2012 FC 205, at
paras 31-32 [Huang] in support of its position. The RAD conducted a
paper-based appeal with no oral hearing and should not have substituted its
decision given that the main issue was the credibility of the applicant’s
Christian identity in Canada. The RAD should have sent the matter back for
re-determination if it was not satisfied with the RPD decision, instead of
re-weighing the credibility findings and re-applying them to the applicant’s sur
place claim.
[26]
The respondent submits that the RAD correctly
found the RPD decision to be unreasonable, because the RPD failed to assess
whether the applicant was a genuine Christian who, on return to Canada, would
continue to practice Christianity in a way that would come to the attention of
the authorities and that, in fact, all of the negative credibility findings
would support the opposite conclusion.
[27]
The Court has considered the authorities cited
by the applicant for the proposition that, even if a claimant is not considered
credible in relation to the events that occurred in her home country, credible
evidence of activities in Canada, that could give rise to a risk of persecution
upon return to her home country, may still ground a sur place claim.
[28]
The applicant refers to Mohajery, a case
in which Justice Blanchard allowed an application for judicial review of a
decision of the RPD where the RPD had dismissed a refugee claim, based on lack
of credibility in the applicants’ evidence as to activities in their country of
origin, but had failed to consider at all the possibility of a sur place claim.
The Court held that the requirement to examine the sur place claim was
engaged by the fact that the claimant had introduced documentary evidence of
religious activities in Canada.
[29]
In the present case, the Court’s view is that Mohajery
does not assist the applicant, as the RAD did consider the documentary evidence
supportive of a sur place claim (the applicant’s baptismal certificate
and a letter from her church in Canada) but concluded that this evidence spoke
only to participation in church activities and not to her motivation to
continue to practice Christianity in China. The RAD considered but discounted
such evidence on the basis of the adverse credibility findings made by the RPD.
[30]
Similarly, in Huang, Justice Zinn at para
32 wrote as follows:
Even if the principal applicant was not a
Christian in China, there is evidence that she attends a Christian church in
Canada and participates in its activities. Perhaps, like Saul on the road to Damascus, she had a revelation and a spiritual awakening in Canada; perhaps not. However,
in order to arrive at a decision as to the genuineness of her current beliefs
some analysis must be made of the evidence and if her evidence is to be totally
discounted, some justification must be provided for that decision. Here there
is none.
[31]
Again, in the case at hand, the RAD did not
ignore the evidence supportive of a sur place claim but considered and discounted
it for reasons based on the applicant’s credibility.
[32]
In Yin, Justice Russell allowed an
application for judicial review in part on the basis that the RPD had failed to
assess evidence of the applicant’s practice of Christianity in Canada. Again,
this case is distinguishable from the present case, in which the RAD did
consider and assess the relevant evidence introduced by the applicant.
[33]
These authorities involve evidence of a nature similar
to the documentary evidence of the applicant’s participation in Christian
activities in Canada in the case at hand. It is precisely the failure to assess
such evidence, to consider whether it supports a sur place claim, that
the RPD failed to do in the case at hand, when it accepted such evidence as
establishing that the applicant was a practicing Christian in Toronto, without
considering the genuineness of her current beliefs.
[34]
Even considering the applicant’s position, that
inherent in the RPD’s decision is a credibility finding with respect to the
genuineness of her religions activities in Canada, this is at best implicit in
the RPD’s decision. As such, it was appropriate for the RAD in exercising its
appellate function to assess independently that aspect of the RPD’s decision
rather than deferring to it without further analysis.
[35]
I have also considered the applicant’s argument
that the RAD erred in quashing the RPD’s decision because of inadequacy of
reasons, contrary to the direction of the Supreme Court of Canada in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62. It is well established that a court, in exercising its judicial review
function in a situation where the reasons of an administrative tribunal appear
inadequate, should look to the record to seek to supplement the reasons before
it seeks to subvert them.
[36]
The respondent raises the question how
applicable this principle is to the RAD in exercising its appellate function.
However, it is not necessary to consider this question, as it is apparent to
the Court that the RAD’s decision in the present case did not turn on
inadequacy of reasons. While the decision does refer to the RPD having failed
to explain how being engaged in Christian activities in Canada overcame the
compelling adverse credibility finding it made, these references form part of
the RAD’s own analysis as to whether the evidence is supportive of the
applicant’s sur place claim.
[37]
Given that the RAD did not remit the matter back
to the RPD for redetermination, but chose to substitute its own determination,
I invited counsel at the hearing of this matter to make submissions on the
principles that should guide the RAD in selecting this route. The applicant’s
counsel referred to a recent decision of Justice Simpson that spoke to the
RAD’s jurisdiction to substitute its own determination. As the reference to
this authority arose from my inquiry and had not been included in the
authorities filed with the Court, I invited counsel to make supplementary
written submissions on the application of that decision.
[38]
The applicant’s counsel provided such
submissions, referring the Court to Justice Simpson’s decision in Yang v
Canada (Citizenship and Immigration), 2015 FC 551 at para 12 [Yang],
which held that the RAD lacked jurisdiction under ss. 111(1)(b) of the Act to
substitute its own determination on the sur place issue where the RPD
had not itself made a determination on the sur place claim.
[39]
I am grateful to counsel for referring me to
this authority but must agree with the respondent’s supplementary written submissions
that this case is distinguishable, because the finding of lack of jurisdiction
in Yang turned on the fact that the RPD had not made a decision on the sur
place issue. In contrast, although not using the term “sur place”,
the RPD in the case at hand made a positive determination on this issue, and
granted refugee status, based on the applicant’s religious activities while in
Canada. The applicant notes the RAD’s finding that the RPD failed to assess the
applicant’s intention to engage in Christian activities if she returns to
China. However, that does not mean that the RPD did not make a decision on the
sur place issue, but only that it failed to engage in the necessary
analysis in doing so.
[40]
Given that the RAD substituted its own determination,
I have also considered the RAD’s decision in accordance with the principles in Dunsmuir
v New Brunswick, 2008 SCC 9. The RPD’s adverse credibility findings were
not challenged before the RAD. The RAD took into account those unchallenged
findings and the evidence that the applicant had adduced in support of her
Christian activities in Canada and concluded, on a balance of probabilities,
that she would not continue to practice Christianity in a church of her choice
upon return to China and that she would not be perceived to be a Christian in
China. Akin to the decision in Jing v Canada (Citizenship and Immigration), 2012
FC 609 at paras 21-23, the Court finds this to be a reasonable decision,
characterized by justification, transparency and intelligibility, falling
within the range of acceptable outcomes.
[41]
Neither party proposed any question to be
certified for appeal.
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