Docket: IMM-6829-14
Citation:
2015 FC 878
Ottawa, Ontario, July 17, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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MOHAMED ZAYAN
NIYAS
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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
I.
Nature of the Matter
[1]
This is a judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA] of the September 9, 2014, decision of the Refugee Appeal Division (RAD)
of the Immigration and Refugee Board of Canada (IRB) wherein the RAD confirmed
the decision of the Refugee Protection Division (RPD) that the applicant is
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of IRPA.
II.
Facts
[2]
The applicant is a citizen of Sri Lanka from the
city of Colombo who alleged before the IRB that he fears the authorities of his
country due to: (i) his membership in a political party called the National
Unity Alliance (NUA), (ii) his Muslim faith, and (iii) his perceived connection
to the Liberation Tigers of Tamil Eelam (LTTE). The applicant alleges that he
was targeted by Bodu Bala Sena (BBS), which is a radical anti-Muslim movement.
The applicant’s brother also made a claim for refugee protection in Canada in
September 2008. His claim was rejected by the RPD with the applicant’s claim.
[3]
The applicant alleges that while he was in his
father’s store, a member of the BBS told him that Sri Lanka belonged to the
Sinhalese ethnic majority, and warned him to close the business or they would teach
him a lesson.
[4]
The applicant alleges that his family had
problems with the police in Colombo for their perceived association with the
LTTE. The authorities came to the applicant’s family home, questioned him and
his family, and searched the premises to determine whether they were helping
the LTTE.
[5]
In October 2011, the authorities questioned the
applicant’s father about the applicant’s brother’s involvement in supporting
the Tamil diaspora in Toronto.
[6]
The applicant also alleges that he received
threatening phone calls accusing him of being an LTTE supporter after he
attended meetings held in Colombo by the NUA.
[7]
The applicant alleges that in April 2013, he was
arrested, detained, and beaten by the authorities for his connection with the
LTTE and the NUA. After two days, he was released with a warning that he would
not be released if arrested a second time.
[8]
The applicant left Sri Lanka for the United
States shortly thereafter.
[9]
In October 2013, members of the police
intelligence as well as two presumed members of the BBS allegedly came to the
applicant’s house. After the applicant’s mother informed them that the
applicant had left for the United States, they told her that the applicant was
to report to the police as soon as he returned to Sri Lanka.
[10]
Later that month, with the assistance of a
smuggler, the applicant crossed from the United States to Canada (where his
brother was) and claimed refugee protection.
III.
Decision
A.
The RPD’s decision
[11]
For the following reasons, the RPD found that
the determinative issues were the applicant’s lack of credibility and his lack
of subjective fear:
- Regarding the threatening phone calls, the applicant first
testified that he could not remember when they began, but later modified
his testimony by stating that they began around March 15, 2013. He also
testified initially that the first call was a couple of days after he
became a member of the NUA, though he later said the first call was about
a week after joining the NUA.
- The applicant’s testimony with respect to the threatening phone
calls was inconsistent with his Personal Information Form (PIF). The
applicant wrote in his PIF that he received threatening phone calls
because of his perceived association with the LTTE and his attendance at
meetings held by the NUA. However, he failed to include these reasons in
his testimony. There, he cited instead objections to his business being
operated by Muslims. The applicant did not mention in his PIF that the
callers threatened his business.
- The applicant’s testimony as regards the alleged two days of
detention was incomplete when compared to his PIF. The applicant did not
mention in his oral testimony that the authorities warned him during his
detention that they had specific information concerning his involvement
with helping members of the LTTE to hide from the authorities after the
war.
- The applicant stayed in the United States for approximately six
months before making his refugee claim, and then went to Canada to make
the claim.
- The applicant testified that he hired a smuggler to get across
the border from the United States to Canada because he did not know how to
claim refugee protection in Canada. However, the applicant knew how to
find immigration related information, having applied for a Canadian
student visa twice before (in September 2012, and December 2012), and he
could have spoken with his brother who had been in Canada since 2008.
- The applicant’s allegation that he left his passport with the
smuggler was implausible because the passport was not used to cross the
border.
- The applicant’s applications for student visas in 2012
indicated a pre-existing motivation to come to Canada.
- The applicant failed to provide adequate documentation to
corroborate his allegations. The applicant failed to provide a letter from
his father who was aware of the events alleged by the applicant. Moreover,
a letter from Azath Zally, the leader of the NUA who knew the applicant
personally, was generic and did not confirm the specific details alleged
by the applicant. Similarly, a letter from a Member of the Sri Lankan
parliament submitted to confirm the applicant’s allegations provided no
details about his father’s situation.
- The applicant knew very little about the threats against his
father.
- The applicant would only face a generalized risk as a Muslim in
Sri Lanka. The assumption that the claimant may be subject to an attack is
speculative.
B.
The RAD’s decision
(1)
Consideration of the new evidence
[12]
In his application, the applicant submitted: (i)
a letter from his father dated April 20, 2014, and (ii) a US Department of
State report outlining the situation for Muslims in Sri Lanka since the RPD’s
decision.
[13]
After perfection of his application, the
applicant made two applications to file additional evidence late. The first
such application, dated May 25, 2014, concerned a copy of the April 20, 2014
letter from the applicant’s father, this one dated April 29, 2014, and bearing
a company stamp. The second application to file additional evidence late was
dated July 8, 2014. It sought to add (i) another letter from the applicant’s
father (dated June 13, 2014) concerning a March 20, 2014 incident; (ii) a
letter from the applicant’s father’s lawyer dated June 24, 2014; and (iii)
additional documentary evidence concerning conditions in Sri Lanka.
[14]
The RAD denied the first application (dated May
25, 2014) because the explanation for the delay in filing the letter from the
applicant’s father was lacking in details and supporting documentation. The RAD
was not satisfied that the letter could not, with reasonable effort, have been provided
with the applicant’s record. The RAD also noted that the letter was not
provided in the form of an affidavit or statutory declaration as required by
subsection 37(4) of the Refugee Appeal Division Rules (SOR/2012-257) [Rules].
[15]
The RAD denied the applicant’s second
application to file late (dated July 8, 2014) for similar reasons. The RAD also
noted that the June 13, 2014 letter from the applicant’s father was not
relevant.
[16]
The RAD then considered the new documents that
were submitted on time: the April 20, 2014 letter from the applicant’s father,
and the US Department of State report. In rejecting these documents, the RAD
applied subsection 110(4) of IRPA and the factors established in Raza v
Canada (Citizenship and Immigration), 2007 FCA 385 at para 13 [Raza]
that pertain to the admission of new evidence in the context of a Pre-Removal
Risk Assessment (PRRA) application:
[13] As I read paragraph 113(a),
it is based on the premise that a negative refugee determination by the RPD
must be respected by the PRRA officer, unless there is new evidence of facts
that might have affected the outcome of the RPD hearing if the evidence had
been presented to the RPD. Paragraph 113(a) asks a number of questions,
some expressly and some by necessary implication, about the proposed new
evidence. I summarize those questions as follows:
1. Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the evidence
need not be considered.
3. Newness: Is the evidence
new in the sense that it is capable of:
(a) proving the current state of
affairs in the country of removal or an event that occurred or a circumstance
that arose after the hearing in the RPD, or
(b) proving a fact that was unknown
to the refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding of fact
by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the evidence
need not be considered.
5. Express statutory conditions:
(a) If the evidence is capable of
proving only an event that occurred or circumstances that arose prior to the
RPD hearing, then has the applicant established either that the evidence was
not reasonably available to him or her for presentation at the RPD hearing, or
that he or she could not reasonably have been expected in the circumstances to
have presented the evidence at the RPD hearing? If not, the evidence need not
be considered.
(a) If the evidence is capable of
proving an event that occurred or circumstances that arose after the RPD
hearing, then the evidence must be considered (unless it is rejected because it
is not credible, not relevant, not new or not material).
[17]
Just as per the RAD’s conclusion with regard to
the April 29, 2014 version of the applicant’s father’s letter, the RAD was not
satisfied that the April 20 version could not have been provided in the form of
an affidavit or a statutory declaration.
[18]
The RAD rejected the US Department of State
report on the basis that it fails the newness test in Raza.
(2)
Merits of the appeal
[19]
The RAD followed the decision of Justice Phelan
in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 [Huruglica]
as regards its standard of review of the RPD’s decision. It acknowledged that
it was obliged to conduct its own independent analysis of the evidence, but
must “show deference to RPD credibility findings and
findings in areas where the RPD has a particular advantage (over the RAD).”
[20]
The RAD confirmed that the RPD did not err in
making the adverse credibility findings mentioned above. It also expressed
scepticism that the applicant’s father could not write a letter or an affidavit
about the problems faced by his son in Sri Lanka, but could make the
arrangements to have a smuggler help his son cross the border from the United
States to Canada.
IV.
Issues
[21]
This matter raises the following issues:
- Did the RAD err
in assessing the admissibility of new evidence?
- Did the RAD err
in confirming that the applicant is not credible?
V.
Analysis
A.
Standard of review
(1)
The RAD’s standard of review
[22]
The parties did not take issue with the RAD’s
reliance on Huruglica to determine the standard of review it should
apply to the RPD’s decision. The disagreement between the parties comes on the
question of whether the RAD correctly applied Huruglica. The
applicant accepts that the RAD owes deference to the RPD on issues of
credibility, but argues that the RAD wrongly applied a reasonableness standard
of review (which is particular to judicial reviews), and further that several
of the RPD’s conclusions that were found by the RAD to be reasonable were not.
(2)
The Court’s standard of review
[23]
This Court applies a standard of reasonableness
in reviewing the RAD’s decision with respect to the RPD’s credibility findings:
Ching v Canada (Citizenship and Immigration), 2015 FC 725 at para 45 [Ching].
That standard of reasonableness also applies to the admissibility of new
evidence: Ching at para 46; Singh v Canada (Citizenship and
Immigration), 2014 FC 1022 at paras 36 to 42 [Singh].
B.
Admission of new evidence
[24]
The applicant argues that the Raza
factors should not be applied to the admission of new evidence by the RAD. The
respondent argues that although this Court cautioned against the direct
importation of Raza into the RAD context in an inflexible manner (Singh),
there are no indications that the RAD did this in the present case.
[25]
There is some debate within this Court as
regards the application of the Raza factors to the RAD. Justice Gagné,
Justice Noël, and Justice Fothergill have considered that the Raza test
should not automatically apply to a determination under subsection 110(4) of
IRPA: Singh at paras 44 to 58; Khachatourian v Canada (Citizenship
and Immigration), 2015 FC 182 at para 37 [Khachatourian]; Ngandu
v Canada (Citizenship and Immigration), 2015 FC 423 at paras 14 to 22 [Ngandu].
The grounds for this position are that: (i) a Pre-removal Risk Assessment
(PRRA) Officer does not have an appeal role with regard to RPD decisions and
does not have a quasi-judicial function as does the RAD: Singh at paras
49 and 50; Khachatourian at para 37; Ngandu at para 20, (ii) the
purpose of creating the RAD was to give a “full-fact
based appeal”: Singh at para 54; Khachatourian at para 37,
and (iii) the factors regarding the admissibility of evidence must be
sufficiently flexible given the strict timelines a claimant now faces for
submitting evidence before the RPD: Singh at para 55; Khachatourian
at para 37. In paragraphs 55 and 56 of Singh, Justice Gagné stated:
A claimant now has 50 days to present all
documents from the date he or she made the claim; the previous legislative
scheme required the documents 20 days prior to a hearing, which, on average,
took much longer to take place. When the RPD confronts a claimant on the
weakness of his evidentiary record, the RAD should, in subsequent review of
the decision, have some leeway in order to allow the claimant to respond to the
deficiencies raised.
But there is more. In Raza, Justice
Sharlow distinguishes between the express and the implicit questions raised by
paragraph 113(a) of the Act and specifically states that the four
implied questions (credibility, relevance, newness and materiality) find their
source in the purpose of paragraph 113(a) within the statutory scheme of
the Act relating to refugee claims and PRRA applications. In my view, they need
to be addressed in that specific context and are not transferable in the
context of an appeal before the RAD.
[Emphasis added]
[26]
However, in Denbel v Canada (Citizenship and
Immigration), 2015 FC 629 at paras 42 and 43 [Denbel], Justice
Mosley emphasized that section 113(a) of IRPA (which applies to PRRAs) and
subsection 110(4) of IRPA (which applies to the RAD) “contain
virtually identical language” which would mean that the “Parliament intended these two provisions to enshrine the
same legal test.”
[27]
I agree with Justice Gagné and Justice Noël that
the purpose of creating the RAD was to give a “full-fact
based appeal”. However, it is also true that that sections 113(a) and
110(4) of IRPA “contain virtually identical language”.
I am mindful that “where words in a statute have
received a judicial construction and the legislature has repeated them without
alteration […], the legislature must be taken to have used them in the sense in
which they have been construed by the court”: Elmer A. Driedger, Construction
of Statutes, 2d ed (Toronto: Butterwoths, 1983) at p 125. Justice
Kane’s decision in Ching at para 58 seems to reconcile these two
positions: “If the RAD refers to Raza for
guidance, given the analogous wording of the provisions, the RAD must consider
how those factors should be adapted to the context of new evidence submitted on
an appeal of specific issues.” Hence, the factors in Raza are
useful guidance, which should however be considered with a view of fostering
the applicant’s right to a “full-fact based appeal”.
[28]
In the present case, I am satisfied that the
RAD’s reliance on Raza to reject a US Department of State report did not
impugn the applicant’s right to a complete assessment of the facts of his case.
Having read this report, I do not believe it would have altered the core of the
RAD’s decision, which concerns mainly the credibility of the applicant. Moreover,
the RAD did not apply the Raza factors strictly in rejecting US
Department of State report. Rather, the RAD stated that the Raza factors
are “relevant”. In addition, the RAD decision
reveals that the application of the Raza factors was not determinative
as regards the rejection of the June 13, 2014 letter from the applicant’s
father. The RAD reasonably concluded that the questions from the police that
were described in the letter were not relevant to the applicant. The fact that
the police were given the applicant’s telephone number but apparently never
attempted to contact him supports this view.
[29]
The applicant also argues that the RAD put form
over the substance in finding that the letter from the applicant’s father was
not admissible under subsection 37(4) of the Rules because it was not an
affidavit. The applicant asserts that the failure to respect section 37 of the Rules
does not render the application for new evidence invalid: section 54 of the Rules.
[30]
In my view, section 54 of the Rules does
not prohibit the RAD from applying subsection 37(4) in the present
circumstances. The RAD reasonably rejected the letter from the applicant’s
father on the basis that the applicant’s explanation for its delay and its form
was inadequate. My view on this issue is unchanged despite the apparent
confusion as to who’s sick father-in-law was cited as excusing the delay in
filing the letter.
[31]
I take this opportunity to note that the
applicant has indicated that he is not pursuing the argument that section 37 of
the Rules is ultra vires.
C.
The applicant’s credibility
[32]
The applicant notes correctly that, in several
places in its decision, the RAD appears to apply a standard of reasonableness
to its review of the RPD’s conclusions. The applicant correctly argues that the
reasonableness standard of review is applicable to a judicial review and is not
the correct standard to apply in an appeal to the RAD from a decision of the
RPD.
[33]
However, the RAD clearly stated twice in its
decision that, in its review of the RPD’s decision, it was guided by Huruglica.
Moreover, the critical findings by the RPD were based on testimony from the
applicant and were therefore entitled to deference when reviewed by the RAD.
[34]
Though I agree that the standard of
reasonableness is not technically applicable in the RAD’s review, and
references in its decision to that standard were ill-advised, the deference by
the RAD to the RPD’s conclusions was appropriate. Any incorrect terminology
used by the RAD did not affect the result.
[35]
The applicant objects to the RAD’s acceptance of
the negative inference drawn by the RPD from the modification of the
applicant’s testimony concerning the timing of the first threatening phone
calls he received in Sri Lanka. Initially, he indicated that he could not
remember when the phone calls began, but later indicated that the first call
happened around March 15, 2013. Also, the applicant initially testified that
the first phone call came a couple of days after he became a member of the NUA,
though he later indicated that the first call came about a week after he joined
the party. Even though these discrepancies may seem minor, the RPD appeared to
understand the evidence and gave reasons for its conclusion. The RAD was
entitled to defer to those reasons.
[36]
The applicant also objects to the RPD’s
conclusion, supported by the RAD, that it was implausible that the smuggler who
was hired to get the applicant across the border from the United States to
Canada would take the applicant’s passport which was not even used in the
crossing. The applicant cites authorities to the effect that conclusions of
implausibility should be reached only in clear cases. In my view, and in the
light of the totality of the evidence, it was reasonably open to the RAD to
support the RPD’s conclusion of implausibility.
[37]
The applicant also takes issue with the finding
that the applicant’s delay in seeking asylum (he waited six months after
arriving in the United States, and then travelled to Canada to seek asylum)
indicated an absence of subjective fear. I have heard nothing to convince me
that the RAD’s analysis of this issue was unreasonable.
[38]
Finally, the applicant argues that the RAD erred
in failing to consider the applicant’s risk in Sri Lanka as a Muslim. The
applicant argues that, even if the RAD was correct in excluding new evidence
because it was not supported by affidavit, the same could not be true of a new
argument. The applicant argues that the RAD was obliged to consider whether the
existing evidence indicated that the applicant would be at risk in Sri Lanka as
a Muslim. I am unwilling to accept an argument by the applicant that the RAD’s
silence on this issue indicates that it was not adequately considered by the
RAD, when the applicant himself was likewise silent on the issue.
VI.
Conclusions
[39]
In my view, the applicant for judicial review
should be dismissed.
[40]
Because this decision is not dependent on the
RAD’s application of the Raza factors in the case of an appeal to the
RAD, I will not certify the question proposed by the applicant.
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