Docket: IMM-6212-14
Citation:
2015 FC 759
Ottawa, Ontario, June 17, 2015
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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ELSA HAGOS AWET
THOMAS ANTONIOS ENDRIAS
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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
brought by Elsa Hagos Awet and Thomas Antonios Endrias from a decision of the
Refugee Appeal Division [RAD] denying their appeal from an earlier unsuccessful
refugee determination by the Refugee Protection Division [RPD].
[2]
The Applicants claim to be citizens of Eritrea. Their application for protection was denied by the RPD on the ground that they had
failed to prove their identities with credible or trustworthy evidence. That
decision was upheld by the RAD.
[3]
In the hearing before the RPD the Applicants produced
identity documents in the form of birth certificates and drivers’ licences.
Their birth certificates were rejected because of the absence of security
features and poor quality. The drivers’ licenses were rejected mainly because
they contained English spelling errors and alterations. Based on the
Applicants’ knowledge of Eritrea, the RPD concluded the Applicants had probably
lived there but it was not satisfied of their purported Eritrean citizenship.
[4]
Before the RAD the Applicants attempted to
supplement their identity documentation with originals of their Ethiopian birth
certificates and, for Ms. Awet, an original baptismal certificate. These
documents were appended to a brief affidavit indicating that they were acquired
after the RPD decision. That affidavit indicated that the documents were
carried out of Eritrea by a person at the request of Mr. Endrias’ parents.
[5]
The principal ground of appeal before the Court concerns
the standard of review applied by the RAD to the RPD’s decision. On the face of
the RAD’s decision it is quite clear that it adopted the deferential standard
of reasonableness. This is evidenced by the following passages:
[40] 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’s 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.
[41] Given the analysis above, the RAD
therefore has afforded a considerable level of deference to RPD findings on
questions of fact in this claim and considered whether the findings meet the
reasonableness test.
[42] For theses 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.
…
The RPD’s finding that the Appellants have
not established their identity falls within a range of possible, acceptable
outcomes that is defensible in respect of the facts and law. As such, this
appeal cannot succeed.
[6]
Counsel for the Minister points out that the RAD
did its own assessment of some of the identity evidence and appears to have
drawn its own conclusions about its reliability. In particular the RAD, like
the RPD, expressed doubt about the likelihood that government agencies would
issue documents with basic English spelling errors. The RAD also found the
Applicants’ explanations for failing to produce their National Identity Cards “illogical”. In both instances the RAD found the
corresponding findings by the RPD to be reasonable.
[7]
It is also of some concern that the RAD found
the newly tendered identity documents not credible on the basis of “the RPD credibility findings from the previous documents
which were filed at the hearing”. This suggests the RAD did not independently
consider the reliability of these documents and simply applied the deferential
standard.
[8]
It is thus not entirely clear from the RAD’s
decision how it treated the RPD findings. In the face of the RAD’s unequivocal
assertions of deference it would be unsafe to assume that it fully carried out
the kind of independent review of the evidence that is required: see Huruglica
v Canada, 2014 FC 799, [2014] FCJ No 845, per Justice Phelan; Spasoja v
Canada, 2014 FC 913, 249 ACWS (3d) 829, per Justice Roy; Alyafi v Canada,
2014 FC 952, [2014] FCJ No 989, per Justice Martineau; Njeukam v Canada,
2014 FC 859, 247 ACWS (3d) 429, per Justice Locke; Bahta v Canada, 2014
FC 1245, 248 ACWS (3d) 419, per Justice Simpson; Pemaj v Canada,
IMM-1988-14, per Justice Kane and my own decision in Sow v Canada, 2015
FC 295, 252 ACWS (3d) 316. For this reason the matter must be redetermined on
the merits in accordance with the standard of review discussed in the above
decisions.
[9]
I would add that at least one of the RPD’s findings
concerning the tendered new documents is difficult to comprehend. At para 31 of
the RAD decision, these documents were rejected on the following basis:
In contrast the new evidence submitted by
the Appellants to the RAD, what they purport to be original birth certificates
and a baptismal certificate [sic]. There is no evidence before the RAD to
establish a link between the Appellants and the documents that they have
submitted as being theirs. As such the RAD does [sic] find these documents
persuasive and, as a result, does not accept these documents as proof of their
identity.
This statement is wrong.
The new documents were appended to an affidavit establishing a link to the
Applicants, and they also contained personal identifiers consistent with the
Applicants’ original identity documents.
[10]
I accept the point made by the Minister’s
counsel that the new documents were rejected independently because they ought
to have been available before the RPD. In making that finding, the RAD applied
the principles of admissibility from Raza v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 385, 289 D.L.R. (4th) 675. While I agree that
applying the basic factors in Raza can be helpful, this Court has since
observed that a more generous approach to the acceptance of new evidence may be
appropriate in the context of a RAD appeal than in a PRRA: see Singh v Canada
(Minister of Employment and Immigration), 2014 FC 1022 at paras 3-42,
246 ACWS (3d) 433.
[11]
For the foregoing reasons this application is
allowed. The matter will be remitted to a different panel of the RAD for
reconsideration on the merits.
[12]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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