Docket: IMM-6058-14
Citation:
2015 FC 949
Ottawa, Ontario, August 6, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SHAROF SHUKUROV
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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.
Introduction
[1]
Sharof Shukurov has brought an application for
judicial review pursuant to s 72 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA]. Mr. Shukurov challenges the dismissal by the
Refugee Appeal Division of the Immigration and Refugee Board [the RAD] of his appeal
of a decision of the Refugee Protection Division [the RPD]. The RPD determined
that Mr. Shukurov was neither a Convention refugee within the meaning of s 96
of the IRPA nor a person in need of protection as defined in s 97(1) of the
IRPA.
[2]
For the reasons that follow, I have concluded
that the RAD applied the wrong standard of review to the RPD’s decision and the
wrong test to determine the admissibility of additional evidence submitted on
appeal. I am unable to say whether the result would have been the same if the appropriate
standard and test had been applied, and accordingly the application for
judicial review is allowed.
II.
Background
[3]
Mr. Shukurov is a citizen of Uzbekistan. His
claim for refugee protection was based on the following contentions:
•
Mr. Shukurov was employed as a hotel manager in Samarkand,
Uzbekistan. In January, 2013, a police officer called to reserve the hotel’s
pool and sauna in order to entertain his guests. Mr. Shukurov complied and made
a note of the reservation.
•
The owner of the hotel saw the reservation and
recognized the name of the police officer. Based on previous experience, the
owner was concerned that the police officer would not pay for the use of the
pool and sauna. The owner therefore arranged for signs to be placed indicating
that both were out of service.
•
When the police officer arrived with his guests
and discovered that he would not be able to use the sauna or the pool, he
became angry with Mr. Shukurov. Mr. Shukurov, who was unaware of the hotel
owner’s actions, could offer no explanation.
•
Two days after the incident, the police officer
demanded the equivalent of $5,000 from Mr. Shukurov as “compensation”
for the embarrassment he had suffered in front of his guests. When Mr. Shukurov
objected, the police officer threatened to bring false criminal charges against
him.
•
Mr. Shukurov complied with the police officer’s
demands with an initial payment of $1,000. The police officer indicated that he
expected the balance to be paid in instalments of $500 every month.
•
Mr. Shukurov approached another police officer
and a state prosecutor to explain his predicament and to lodge a complaint. He
was told by these officials that a complaint would be futile and that the
police officer would be protected by other public officials, as this kind of
extortion was commonplace.
•
Mr. Shukurov then decided to leave the country.
He applied for a Canadian visa on February 24, 2013. Mr. Shukurov continued to
make monthly payments to the police officer until he arrived in Canada on May
14, 2013.
[4]
Mr. Shukurov made a refugee claim on June 13,
2013. His claim was rejected by the RPD on November 21, 2013. Mr. Shukurov then
appealed the decision to the RAD. The appeal was dismissed on July 28, 2014.
[5]
Mr. Shukurov brought an application for leave
and for judicial review in this Court on August 11, 2014. Leave was granted on
March 12, 2015.
III.
The RAD’s Decision
[6]
Mr. Shukurov submitted a number of additional
documents in support of his appeal in accordance with s 110(4) of the IRPA. The
RAD relied on this Court’s decision in Raza v Canada (Minister of
Citizenship and Immigration), 2006 FC 1385 [Raza] to reject
all but one of these documents due to its concerns about their provenance and authenticity.
The appeal was therefore heard on the basis of the record of proceedings before
the RPD, the submissions of the parties, the testimony of Mr. Shukurov, and one
additional document.
[7]
Mr. Shukurov argued before the RAD that the
RPD’s decision was flawed in three respects: a) the RPD’s finding that there
was no nexus between the risk faced by Mr. Shukurov and the grounds for refugee
status contained in the Convention; b) the RPD’s negative credibility assessment
based on a lack of corroborative evidence; and c) adverse inferences made by
the RPD due to inconsistencies in Mr. Shukurov’s oral evidence and its rejection
of Mr. Shukurov’s explanations for those inconsistencies.
[8]
The RAD referred to the decision of this Court
in Iyamuremye c Canada (Ministre de Citoyenneté et de l’Immigration),
2014 CF 494 [Iyamuremye] in support of its conclusion that the standard
of review to be applied to appeals that involve mixed questions of fact and law
is reasonableness.
[9]
The RPD found there to be no nexus between the
risk faced by Mr. Shukurov and the criteria for refugee protection because the
police officer’s threats and extortion did not amount to persecution within the
meaning of the Convention. In reviewing this finding, the RAD noted that Mr.
Shukurov had not expressed any views regarding police corruption that could be
perceived as political opinion against the government. Furthermore, the evidence
submitted by Mr. Shukurov to demonstrate that he was a “wanted
person” in Uzbekistan was found by the RPD not to be credible. The RAD
concluded that the RPD’s determination was reasonable.
[10]
The RAD then considered the RPD’s adverse
finding regarding Mr. Shukurov’s credibility. The RAD observed that the RPD had
identified a number of questions regarding the provenance of the documents
submitted by Mr. Shukurov, including how he came to receive them in Canada. The
RAD concluded that it was reasonable for the RPD to insist on corroborative
evidence, and to assign little or no probative value to the documents when this
was not forthcoming. The RAD accepted that the absence of corroborative
documentation would not, in itself, be a reason to reject Mr. Shukurov’s
credibility. However, combined with the inconsistencies in Mr. Shukurov’s oral
testimony, the RAD once again found the RPD’s conclusion to be reasonable.
[11]
Finally, the RAD noted that Mr. Shukurov was
given an opportunity by the RPD to dispel its concerns. However, Mr. Shukurov was
unable to recall key facts because he had “forgotten”
them. The RAD concluded that it was open to the RPD to find that Mr. Shukurov’s
account of events was not reasonable and to expect medical reports if Mr.
Shukurov was suffering from memory loss.
[12]
The RAD confirmed the determination of the RPD
that Mr. Shukurov was neither a Convention refugee nor a person in need of
protection pursuant to ss 96 and 97 of the IRPA, and dismissed the appeal.
IV.
Issues
[13]
The following issues are raised by this
application for judicial review:
A.
Whether the RAD applied the wrong standard of
review to the RPD’s decision; and
B.
Whether the RAD applied the wrong test to
determine the admissibility of additional evidence submitted on appeal.
V.
Analysis
A.
Whether the RAD applied the wrong standard of
review to the RPD’s decision
[14]
The RAD is a relatively new appellate tribunal.
The law regarding the standard of review to be applied by this Court to the
RAD’s determination of its own standard of review is not yet settled. This Court’s
decision in Huruglica v Canada (Minister of Citizenship and Immigration),
2014 FC 799 [Huruglica] is currently before the Federal Court of Appeal.
Until the matter is resolved by higher courts, I align myself with Justice
Martineau in adopting a “pragmatic approach”. As
Justice Martineau observed in Djossou v Canada (Minister of Citizenship and
Immigration), 2014 FC 1080 [Djossou] at para 37:
[37] […] For the time being, there
appear to be a number of possible approaches, but what is clear, however, is
that the option chosen by the RAD (a judicial review-based approach) is not an
acceptable outcome in law. Even applying the lesser standard of reasonableness,
I still arrive at the same end result as my colleagues who applied the more
stringent correctness standard. Intervention is warranted in this case. In this
way, the choice of appropriate standard of review will not be determinative of
the matter.
[15]
I have discussed this Court’s jurisprudence regarding
the legal issues raised in this application for judicial review in a number of
recent decisions: Ngandu v Canada (Minister of Citizenship and Immigration),
2015 FC 423 [Ngandu]; Pataraia v Canada (Minister of Citizenship
and Immigration), 2015 FC 465 [Pataraia]; Razak v Canada (Minister
of Citizenship and Immigration), 2015 FC 529. Based upon the
analysis found in these decisions, I am satisfied that the RAD commits an error
when it reviews the RPD’s findings against the standard of reasonableness and
fails to conduct its own assessment of the evidence. Although not unanimous on
this point (see Spasoja v Canada (Minister of Citizenship and Immigration),
2014 FC 913 at para 39), most judges of this Court have come to the same
conclusion (Iyamuremye at para 41; Huruglica at paras 47 and 54; Njeukam
v Canada (Minister of Citizenship and Immigration), 2014 FC 859 at paras 15
and 16; Akuffo v Canada (Minister of Citizenship and Immigration), 2014
FC 1063 at para 45; Djossou at para 53).
[16]
Some judges of this Court have held that the RAD
does not commit a reviewable error when it applies the standard or
reasonableness to findings of pure credibility (Njeukam; Akuffo; Allalou
v Canada (Minister of Citizenship and Immigration), 2014 FC 1084). However,
as explained by Justice Noël in Khachatourian v Canada (Minister of
Citizenship and Immigration), 2015 FC 182 [Khachatourian] at para
32, this Court will uphold the RAD’s application of the reasonableness standard
to the RPD’s findings of credibility only when it is clear that the RAD has in
fact conducted its own assessment of the evidence. This is also the thrust of
Justice Shore’s decision in Youkap v Canada (Minister of Citizenship and
Immigration), 2015 FC 249 at paras 36 and 37, where he notes that in cases
involving findings of pure credibility, the point is not which standard was
applied but rather “whether the RAD conducted an
independent assessment of the evidence as a whole.” I am therefore of
the view that the RAD’s obligation to conduct an independent assessment of the
evidence extends to questions of credibility; although where no hearing is held
before the RAD, deference may be owed to credibility findings of the RPD that
are based on a witness’ conduct before the panel (Pataraia at para 12).
[17]
In this case, the RAD said the following about
the standard of review it should apply to decisions of the RPD:
[…] counsel submitted that “the RPD is required to (re-) consider
the evidence filed at the RPD and form its own opinion to assess the decision”.
It would appear that counsel meant to say that the RAD is to consider the
totality of the evidence. I concur if that is what the Appellant has submitted.
In this case, the issues are to be
considered on the standard of reasonableness. The reasonableness standard is
concerned with the “existence of justification, transparency and
intelligibility in the decision-making process” and with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law as per Dunsmuir.
[18]
This statement is ambiguous and appears to be
internally inconsistent. I am not persuaded that the RAD properly understood
its obligation to conduct a full, fact-based assessment of Mr. Shukurov’s claim.
The RAD reviewed the decision of the RPD against the Dunsmuir standard
of reasonableness and made a determination as to whether each of the RPD’s
conclusions fell within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] at para 47). The RAD’s misplaced reliance
on Dunsmuir and its application of the reasonableness standard is
confirmed by the following statement in its decision:
Counsel submitted that the jurisprudence
requires the RAD to look at the totality of the evidence before it. I have done
so and find that the RPD’s finding and determination is reasonable and meets
the [Dunsmuir] test as stated above. Based on the foregoing, I find that
the RPD’s decision is reasonable.
[19]
It is therefore clear that the RAD did not conduct
an independent, fact-based assessment of the evidence. The RAD is an appellate
body and it commits a reviewable error when it applies the standard of judicial
review while fulfilling its appellate functions (Djossou at para 7). While
it is possible for the RAD to misstate the applicable standard of review but
nevertheless conduct an independent review of the evidence, for the reasons
expressed above I find that this did not happen here. The application for
judicial review must be allowed.
B.
Whether the RAD applied the wrong test to
determine the admissibility of additional evidence submitted on appeal
[20]
Questions regarding the admissibility of additional
evidence before the RAD are reviewable against the standard of reasonableness (Singh
v Canada (Minister of Citizenship and Immigration), 2014 FC 1022 at paras
36-42 [Singh]; Khachatourian at para 37).
[21]
Mr. Shukurov objects to the RAD’s reliance on
the Federal Court of Appeal’s decision in Raza to determine whether additional
evidence should be permitted on appeal. Raza concerned the admission of
new evidence in the context of a Pre-Removal Risk Assessment (PRRA). The RAD described
Raza as “the leading case on new evidence,”
but it did not address why the criteria for admitting new evidence in the
context of a PRRA should also apply to an appeal before the RAD.
[22]
Mr. Shukurov notes that in Singh and Khachatourian,
this Court held that the criteria identified in Raza should not
automatically be applied to a determination of whether additional evidence may
be adduced before the RAD. Mr. Shukurov argues that even if the RAD was
entitled to apply the Raza criteria, then the RAD’s application of these
criteria was unreasonable because its analysis of the evidence’s materiality and
credibility was flawed.
[23]
The Minister points out that the language of the new evidence
provisions in the PRRA context (s 113(a) of the IRPA) and in the RAD context (s
110(4) of the IRPA) are very similar, and it was therefore reasonable for the
RAD to apply the Raza criteria to determine whether additional evidence should
be admitted before the RAD. The Minister relies on the recent decision of
Justice Mosley in Denbel v Canada (Minister of Citizenship and Immigration),
2015 FC 629.
[24]
This issue is also the subject of differing jurisprudence
from this Court. As I discussed in Ngandu, the similarity of the
provisions does not necessarily mean that the Raza criteria apply to the
admission of additional evidence in an appeal before the RAD. The purposes of
an appeal before the RAD and a PRRA are distinct. This was recognized by the
Court of Appeal in Raza:
[12] A PRRA application by a failed refugee claimant is not an
appeal or reconsideration of the decision of the RPD to reject a claim for
refugee protection. Nevertheless, it may require consideration of some or all
of the same factual and legal issues as a claim for refugee protection. In
such cases there is an obvious risk of wasteful and potentially abusive
relitigation. The IRPA mitigates that risk by limiting the evidence that may be
presented to the PRRA officer. The limitation is found in paragraph 113(a) of
the IRPA…
[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.
[Emphasis added.]
[25]
The role of a PRAA officer is markedly different
from that of the RAD. As Justice Gagné observed in Singh:
[50] A PRRA officer is not a
quasi-judicial body, nor does he or she have an appellate function when faced
with a RPD decision. The PRRA officer is an employee of the Minister,
acting within his or her employer's discretion (insofar as it is circumscribed
by the Act and the Regulations). The PRRA officer must give deference to
the RPD’s determination of the claim, to the extent that the facts remain
unchanged from the time it had rendered its decision. Instead, the PRRA officer
is specifically looking as to whether new evidence has come to life
since the RPD’s rejection of the claim for determining a risk of persecution, a
danger of torture, a risk to life or a risk of cruel and unusual treatment or
punishment.
[Emphasis added.]
[26]
This may be contrasted with the function of the RAD,
which is a quasi-judicial appellate body that is intended by Parliament to
conduct a “full fact-based appeal” of decisions
of the RPD. A “full fact-based appeal” requires
that the rules of evidence be applied with a measure of flexibility, especially
given the strict timelines faced by refugee claimants (Singh at paras
53-56; Khachatourian at para 37) singh is currently before the
Federal Court of Appeal. I acknowledge that the application of the Raza
criteria remains unsettled pending the decision of higher courts (see Iyamuremye
at para 45; Denbel at paras 40-44). I nevertheless continue to hold the
view that the RAD commits a reviewable error when it applies the Raza
criteria without modification to determine the admissibility of additional evidence
submitted on appeal (Singh; Katchatourian; Ngandu).
[27]
I am unable to say whether the application of a
more flexible test for the admission of evidence would have changed the outcome
of the appeal. The application for judicial review must therefore be allowed on
this ground as well.
VI.
Conclusion
[28]
The application for judicial review is allowed
and the matter is remitted to a differently-constituted panel of the RAD for
re-determination.
[29]
The standard of review to be applied by this
Court when reviewing the RAD’s determination of its own standard of review is
before the Federal Court of Appeal in Huruglica. The application of the Raza
criteria to determining the admissibility of additional evidence under s
110(4) of the IRPA is before the Federal Court of Appeal in Singh. I
therefore agree with the parties that it is neither necessary nor appropriate
to certify a question for appeal in this case.
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