Docket: IMM-5932-14
Citation:
2015 FC 841
Ottawa, Ontario, July 9, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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SAHRA SALAH SAALIM
RAYAAN MAHDI ALI
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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 under ss. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board of
Canada [RAD] dated July 2, 2014, wherein the RAD confirmed the decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
[RPD] that the applicants are neither Convention refugees within the meaning of
s. 96 of the Act nor persons in need of protection under s. 97 of the Act.
[2]
For the following reasons, the application for
judicial review is allowed and the matter is referred to the RAD for
re-determination by a differently constituted panel.
I.
Background
[3]
The applicants are a twenty-five-year-old woman
and her one-year-old daughter. They claim to be citizens of Somalia and seek
refugee protection based on their gender and their membership in the minority
Tumaal clan. They fear persecution in Somalia by majority clan militias including
Al-Shabaab.
[4]
The principal applicant testified before the RPD
regarding her experiences in Somalia leading to her fleeing the country. She
stated that she lived in Beledweyne, where she was married to a man who is also
a member of the Tumaal clan and who was employed as a tax collector by the
Transitional Federal Government [TFG] of Somalia. She stated that the Al-Shabaab
militia targeted her husband because he was working for the TFG and because
they owned a tea shop that government and international soldiers frequented. He
fled the country, and the militia then targeted her.
[5]
The RPD rejected the applicants’ claims on the
basis that the principal applicant lacked credibility, that the applicants had
not established that they were citizens of Somalia or that they were citizens
of Somalia and not citizens of any other country, and that the applicants had
failed to establish that they had a subjective fear of harm or an objective
risk of harm in their country of nationality or former habitual residence.
[6]
On appeal to the RAD, the applicants sought to
introduce new evidence, in the form of an affidavit from a family friend
intended to support the applicants’ assertion of Somali citizenship, and argued
that an oral hearing should be granted to consider this evidence in addition to
testimony from the principal applicant and another witness who had testified
before the RPD. The applicants argued that the RPD’s findings on citizenship
and credibility should be set aside and that the relevant country condition documentation
supported a conclusion that the applicants were at objective risk, independent
of the principal applicant’s testimony as to her experiences in Somalia.
[7]
The RAD confirmed the RPD’s decision. It
refused to admit the affidavit from the new witness. It also noted that, in
addition to the affidavit from the new witness, the applicants’ appeal record
included affidavits from the principal applicant and another witness who had
testified before the RPD and numerous country condition documents. The RAD stated
that the applicants’ counsel should have known that submissions would be
required on the admissibility of these documents and held that, insofar as the
applicants’ pleadings relied on these documents, their submissions and
arguments were undermined.
[8]
Although the RAD rejected the affidavit from the
new witness, it disagreed with the RPD’s finding on citizenship and found that
the applicants were more likely than not citizens of Somalia. However, applying
a standard of reasonableness, the RAD declined to interfere with the RPD’s decision.
It found that the RPD’s findings as to the principal applicant’s lack of
credibility were reasonable. While recognizing the difficulty faced by ethnic
minorities and women living in Somalia, the RAD concluded that there was no
persuasive evidence that the principal applicant ever faced persecution and found
that the applicants would not personally be at risk upon returning to Somalia.
II.
Issues
[9]
The applicants raise the following issues to be
considered in this application for judicial review:
A.
Whether the RAD erred in law or reached
unreasonable conclusions by refusing to consider the totality of the evidence,
specifically the Immigration and Refugee Board’s national documentation package
related to Somalia [NDP];
B.
Whether the RAD erred by refusing to accept the
affidavits from the principal applicant and the other witness who had testified
before the RPD, as well as the affidavit from the new witness, and by refusing
to hold an oral hearing; and
C.
Whether the RAD erred in upholding the RPD’s
findings based on a standard of reasonableness.
[10]
The applicants also claim costs, arguing that
the RAD’s findings - that the documents in the NDP were not on record and that
the applicants’ counsel should have known that submissions would be required on
the admissibility of these documents - represent the special basis required for
an award of costs in an immigration judicial review application.
III.
Standard of Review
[11]
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).
[12]
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 in Djossou, the RAD’s selection of the judicial
review standard of reasonableness in the case at hand is an error regardless of
the standard against which that selection is assessed.
[13]
Decisions of this Court have also expressed in
various ways the standard of review that should be employed by the RAD in
considering appeals from the RPD. In Alvarez v Canada (Citizenship and
Immigration), 2014 FC 702 at paragraph 33 [Alvarez], 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.
[14]
Justice Phelan addressed the standard of review
to be employed by the RAD as follows at paragraphs 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”.
[15]
However, as noted by Justice Martineau in Djossou
at paragraph 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.
[16]
In both Alvarez and Huruglica the
articulation of the standard of review includes some level of deference to be
shown by the RAD to the factual findings of the RPD, at least where issues of
credibility are engaged, but also the importance of the RAD conducting its own
independent assessment.
IV.
Analysis
[17]
In the Court’s assessment, the outcome of this application
turns on the first issue, whether the RAD erred in law or reached unreasonable
conclusions by refusing to consider the totality of the evidence, specifically
the NDP.
[18]
On the subject of the standard of review, the
applicants argue that the RAD incorrectly adopted the judicial review standard.
They also assert that, while the RAD referred to this Court’s decision in Iyamuremye
v Canada (Citizenship and Immigration), 2014 FC 494 [Iyamuremye],
the RAD failed to perform its appellate function in accordance with Justice
Shore’s conclusion in that case that the RAD must carry out its own independent
evaluation of the evidence.
[19]
The respondent’s position is that the RAD is not
precluded from applying a reasonableness standard as it did in this case. The
Respondent supports this position with submissions based on the relative roles
and expertise of the RPD and the RAD.
[20]
This Court has repeatedly ruled that the RAD
errs when it applies the standard of reasonableness to its review of the RPD’s
findings (see Djossou, above, at paras 6 and 7). Notwithstanding
the RAD’s reliance upon Iyamuremye in its decision, its articulation of
the applicable standard of review misses in particular the important requirement
that it must carry out its own independent evaluation of the evidence. This
does not in itself preclude a conclusion that the RAD conducted the necessary
evaluation of the evidence. In Njeukam v Canada (Citizenship and
Immigration), 2014 FC 859, Justice Locke concluded that the RAD conducted
the required independent analysis, notwithstanding that it had erred in its
expression of the standard of review. However, as explained below, my
conclusion is that the RAD failed to do so.
[21]
The applicants argue that the RAD erred by
failing to recognize that the evidence as to country conditions was found in
the NDP, rather than being new evidence requiring submissions by the applicants
on admissibility, and therefore erred by failing to consider this evidence.
[22]
The respondent’s original Memorandum of Argument
takes the position that the RAD did not err in failing to place any weight on
the evidence described by the RAD as “numerous country
condition documents,” because this evidence was neither before the RAD
nor sought to be entered in new evidence.
[23]
In the respondent’s Further Memorandum of Argument,
the respondent states a somewhat different position on this issue,
acknowledging that the RAD erred when stating that the applicants’ submissions
and arguments were undermined to the extent their pleadings relied on these
documents. However, the respondent argues that it is unclear whether this
statement by the RAD related to the country condition documents (as opposed to
the affidavits), given that the RAD considered the Somalia citizenship law
found in the NDP.
[24]
The respondent further argues that the county
condition documentation does not establish that every female Somlai or every
female from the Tumaal clan is persecuted. The respondent therefore urges the
Court to conclude that, even if the RAD erred in refusing to consider the
country conditions, this is an immaterial error.
[25]
The applicants argued before the RAD that
females from minority clans are at objective risk of persecution in Somalia. Before
this Court, they rely on Dezameau v Canada (Citizenship and
Immigration), 2010 FC 559 for the proposition that where the RPD finds that
an applicant did not provide credible or trustworthy evidence, it must still
give proper consideration to documentary evidence of gender-based violence. I
note that, in that case, the adverse credibility findings related to the
applicant’s claim for refugee status was based on her political opinions, not to
the alternative ground of her membership in a particular social group, being
Haitian women returning to Haiti from North America after a prolonged absence.
[26]
Nevertheless, I agree with the applicants’ proposition
that the outcome of this sort of analysis cannot be known if the relevant
country condition documentation has not been considered. As such, with respect,
the Court is not prepared to reach the conclusion proposed by the respondent, that
the RAD’s failure to consider this evidence is an immaterial error. In Myle
v Canada (Citizenship and Immigration), 2007 FC 1073, Justice
Harrington held that the RPD has a duty to consider the information in its own
documentary package. I agree with the applicants’ position that this duty must
also apply to the RAD. The RAD is required to come to an independent assessment
of whether a claimant is a Convention refugee or a person in need of
protection. As observed by Justice Phelan at paragraph 38 of Huruglica,
the RAD has expertise greater than or equal to the RPD in the interpretation of
country condition evidence. The applicants’ appeal should have had the benefit
of an informed assessment by the RAD of the relevant country condition
documents.
[27]
The respondent also argues that the RAD’s
consideration of the Somali citizenship law, on the basis of which it found
that the applicants were more likely than not citizens of Somalia, demonstrates
that the RAD did take the NDP for Somalia into account. In my view, it is not
possible to conclude, based on the RAD’s reliance on the NDP for this narrow
point, that the RAD performed the required assessment of the NDP. I find that
the applicants’ claim has not yet benefited from such an assessment.
[28]
As such, this decision turns not so much on the
RAD’s error in its articulation of the standard applicable to its review of the
RPD decision, but rather results from the RAD’s own error in failing to
consider the country condition documents such that it cannot be considered to
have conducted the necessary independent assessment of the evidence. This
renders its own decision unreasonable and represents the basis for allowing
this application for judicial review.
[29]
It is accordingly unnecessary to consider the
other issues raised by the applicants.
[30]
On the subject of costs, I do not consider the
error in this case or the manner in which the RAD conducted the appeal to
represent any special basis of the sort that would be required to support an
award of costs.
[31]
The applicants raised for consideration that the
Court certify the question of the standard of review applicable to decisions of
the RAD, suggesting that the articulation of this question be the same as the
question that has been certified as a result of the decision in Huruglica.
The respondent’s position is that no certified question is necessary, because Huruglica
is under appeal and this question will be decided in that matter. As the applicants
have prevailed on this application, no question will be certified.
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