Docket: IMM-798-14
Citation:
2015 FC 909
Ottawa, Ontario, July 24, 2015
PRESENT: The
Honourable Mr. Justice Boswell
|
BETWEEN:
|
|
RABIA TAQADEES
|
|
FIZA NADEEM
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction and Background
[1]
This is an application for judicial review of a
decision by the Refugee Appeal Division of the Immigration and Refugee Board.
[2]
The Applicants are a 41-year-old woman
[Principal Applicant] and her 11-year-old daughter from Pakistan. They allegedly fear that they will be persecuted in that country for being Shia
Muslims. The Principal Applicant stated in her narrative that she had always
experienced discrimination, but the harassment became more severe after she and
her husband began hosting religious functions at their home. This culminated in
an incident on March 19, 2012, when several masked men attacked her as she was
returning from the market. The Principal Applicant said that she went into
hiding after the police did nothing, and she remained in hiding until she was
able to secure passage to Canada for herself and her daughter. They arrived in
this country on December 28, 2012, and made refugee claims some two months
later.
[3]
Their claims were dismissed by the Refugee Protection
Division [RPD] of the Immigration and Refugee Board [IRB] on October 11, 2013.
The RPD found that the Principal Applicant was a poor witness. The Principal
Applicant originally testified that the men who attacked her did not say they
belonged to any organization; but then later she evasively testified that they
belonged to the Tehreek e Tahafuz e Islam, which is the same as the Tehreek e
Sipa e Muhammed. Neither of these organizations was identified in the Principal
Applicant’s basis of claim form, and the RPD doubted that she would omit such a
central detail of her claim simply because she was frightened. The RPD thus
decided that the Principal Applicant had not established that the agents of
persecution were affiliated with any organization at all.
[4]
As there was no organization pursuing her, the
Principal Applicant was unable to convince the RPD that she had no internal
flight alternative [IFA]. The RPD noted that Karachi was a large, populous city
far away from where the Applicants had lived, and the random men who attacked
the Principal Applicant would not likely be motivated or equipped to seek her
out in Karachi. While there was some general sectarian violence everywhere in Pakistan, the RPD observed that there are between 9 and 38 million Shia Muslims in the
country. According to the RPD, the documentary evidence did not support a
finding that the scale of the violence was such that every Shia Muslim in Karachi faced more than a mere chance that they would be harmed. As well, there was
insufficient evidence to persuade the RPD that the Applicants would be unable
to practice their religion openly or that the Principal Applicant could not
find employment. Thus, the RPD rejected the Applicants' claims.
[5]
The Refugee Appeal Division [RAD] dismissed the Applicants'
appeal and confirmed that they were not entitled to protection under either
section 96 or subsection 97(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [Act]. The Applicants now seek judicial review of the
RAD's decision pursuant to subsection 72(1) of the Act, requesting that
the RAD's decision be set aside and the matter returned to a different panel of
the RAD for redetermination.
II.
Issues
[6]
This application raises the following issues:
1.
What standard of review should this Court apply
to the RAD's decision?
2.
Did the RAD apply an appropriate standard of
review to the RPD's decision?
3.
Were the RAD's determinations on credibility and
IFA unreasonable?
III.
The RAD’s Decision
[7]
The RAD dismissed the Applicants' appeal on
January 20, 2014. After reviewing relevant provisions of the Act and the
Alberta Court of Appeal's decision in Newton v Criminal Trial Lawyers'
Association, 2010 ABCA 399, 38 Alta LR (5th) 63 [Newton], the RAD
decided that a refugee appeal was not de novo and, therefore, it should
defer to the RPD's findings of fact and mixed fact and law. Both the RPD's
credibility assessment and its determination that Karachi was an IFA fell into
that category, so the RAD applied the reasonableness standard of review.
[8]
The RAD found that the Applicants' complaints
about the RPD's credibility findings mischaracterized the RPD's decision. The
RPD never made a global finding that the Principal Applicant was not credible,
nor did it find that there were no extremist groups in Pakistan. Rather, the RPD impugned only the Principal Applicant's testimony that the men
who attacked her belonged to an extremist group. The RAD endorsed that
determination by the RPD, stating that:
[36] …If the Appellants are being
targeted by an extremist group, the identity of that group is certainly very
significant to their refugee claims. However, their BoC [Basis of Claim] forms
do not name any extremist groups, nor did the principal Appellant do so in her
initial testimony to the RPD. When pressed, she named a group that does not
appear to be mentioned in the objective evidence, and then she gave a different
name for the group, which is also conspicuous by its absence from country
condition documents. The letters she provided do not name any group. In this
context, it was reasonable for the RPD to make a negative credibility finding
and to find that the Appellants had not established that the agents of
persecution were affiliated with any extremist group.
[9]
The RAD also found no fault with the RPD's IFA
analysis. While there was some evidence that there was no IFA for people
targeted by specific extremist groups, the RAD noted that there was no reason
for the RPD to comment on that given the RPD’s credibility findings. Rather,
the RAD stated that only the general risks were relevant, and the RPD had
reviewed the country conditions and made specific reference to the sectarian
violence affecting Shia Muslims. The RAD opined (at paragraph 42 of its
decision) that, while it “might have considered the
same evidence and reached a different conclusion, the RPD's decision is to be
reviewed on a standard of reasonableness.” The RAD found that the RPD's
decision regarding the situation of Shia Muslims in Karachi and the Applicants'
ability to openly practice their religion satisfied the criteria set out in Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190 [Dunsmuir].
[10]
Finally, the RAD was satisfied that the RPD had
considered all the relevant factors set out in the Chairperson Guidelines 4:
Women Refugee Claimants Fearing Gender-related Persecution (13 November
1996), even though the RPD had not referred to them specifically in its
reasons. Thus, the RAD confirmed that the Applicants were neither Convention
refugees under section 96 of the Act nor persons in need of protection
under subsection 97(1).
IV.
Analysis
A.
What standard of review should this Court apply
to the RAD’s decision?
[11]
The standard for this Court's review of the
RAD's determination as to the scope of its review of RPD decisions is open to
some question. As noted by Mr. Justice Simon Noël in Yin v Canada
(Citizenship and Immigration), 2014 FC 1209 at paragraph 32 [Yin],
the case law diverges on this issue.
[12]
Some decisions state that the correctness
standard applies, either because the issue is one of central importance to the
legal system and outside of the RAD's expertise, or because it affects the
jurisdictional lines between the RPD and the RAD (e.g. Huruglica v Canada
(Citizenship and Immigration), 2014 FC 799 at paragraphs 25-34, [2014] 4
FCR 811 [Huruglica]; Spasoja v Canada (Citizenship and Immigration),
2014 FC 913 at paragraphs 7-8 [Spasoja]; Dunsmuir at paragraphs
60-61). Other cases disagree and say that it is no more than a question of
interpreting the RAD's home statute, which presumptively attracts the reasonableness
standard (Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at
paragraphs 16-26, 31 Imm LR (4th) 301 [Akuffo]; Djossou v Canada
(Citizenship and Immigration), 2014 FC 1080 at paragraphs 13-37 [Djossou];
Brodrick v Canada (Citizenship and Immigration), 2015 FC 491 at paragraphs
20-29 [Brodrick]; Dunsmuir at paragraph 54; McLean v British
Columbia (Securities Commission), 2013 SCC 67 at paragraphs 26-33, [2013] 3
SCR 895). Questions on this issue have been certified in several of these cases
and the appeal from Huruglica has now been scheduled for later this
year, so this division in the case law will soon be considered by the Federal
Court of Appeal.
[13]
In the meantime, I agree with Mr. Justice Luc
Martineau's pragmatic approach to the issue in Alyafi v Canada (Citizenship
and Immigration), 2014 FC 952 at paragraphs 46-52 [Alyafi]. As he
notes and as I summarize below, the case law is divided on the scope of review
that the RAD should apply. This creates a problem similar to one this Court
once faced with respect to the residency test for citizenship (Huang v
Canada (Citizenship and Immigration), 2013 FC 576 at paragraphs 1, 24-25,
[2014] 4 FCR 436). If the correctness standard is applied by every judge of
this Court, the RAD could diligently follow one line of cases only to see its
decisions set aside whenever they are reviewed by a judge who favours the other
line of cases. The law requires more certainty than that. As the Federal Court
of Appeal observed in Wilson v Atomic Energy of Canada Limited, 2015 FCA
17 at paragraph 52, 467 NR 201 [Wilson], “the
meaning of a law should not differ according to the identity of the
decision-maker.” The Federal Court cannot fix the problem at the RAD
level so long as the judges of this Court disagree on the solution, and
applying the correctness standard in this situation would undermine the rule of
law even more than if the dispute was just at the RAD level (Wilson at
paragraph 52). For similar reasons, Justice Martineau concluded in Alyafi
that decisions of the RAD should be upheld so long as either of the two
approaches currently accepted by the Court, or any other reasonable approach,
is applied by the RAD (Djossou at paragraph 91).
[14]
Adopting such an approach in this case, the
RAD's decision in this case should be reviewed on a standard of reasonableness.
This standard also applies to the RAD's factual findings, and its assessment of
the evidence before it is entitled to deference (see: Dunsmuir at
paragraph 53, [2008] 1 S.C.R. 190; Siliya v Canada (Citizenship and
Immigration), 2015 FC 120 at paragraph 20 [Siliya]; Yin at
paragraph 34; Akuffo at paragraph 27; Mohamed v. Canada (Citizenship
and Immigration), 2015 FC 758 at paragraph 19). The RAD's decision should
therefore not be disturbed so long as it is justifiable, intelligible,
transparent and defensible in respect of the facts and the law (Dunsmuir
at paragraph 47). Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes” (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16,
[2011] 3 S.C.R. 708 [Newfoundland Nurses]).
B.
Did the RAD apply an appropriate standard of
review to the RPD’s decision?
[15]
The Applicants claim that the RAD was wrong to
apply the reasonableness standard of review. The Applicants say the RAD can be
compared to the Immigration Appeal Division, and they criticize the RAD for
relying on a single case, Newton, which involved a very different type
of tribunal. Specifically, Newton dealt with a police disciplinary
process where the relevant events occur in the past, while refugee protection
is primarily concerned about the future and the assessment needs to happen at
the time of inquiry (citing e.g. Fernandopulle v Canada (Minister of
Citizenship and Immigration), 2005 FCA 91 at paragraph 25, 253 DLR (4th)
425).
[16]
The Applicants also attack the RAD's reasoning
that its role was constrained by the limited circumstances in which it could
hold an oral hearing or accept new evidence. While the proceeding before the
RAD is shaped by the RPD's decision, in the sense that those are the findings
being challenged by an appellant, the Applicants submit it does not follow that
the RAD must completely defer to those findings. The Applicants argue that the
RAD could always convoke a hearing pursuant to subsection 110(6) of the Act
if it is necessary to assess credibility. In this case, the IFA was determinative
and that finding was based primarily on a review of the documentary evidence,
so the Applicants contend that the RPD was in no better position to make that
finding than the RAD would be.
[17]
The Applicants further claim that the RAD's
concern that the RPD is better placed to make credibility findings does not
justify a deferential standard of review by the RAD. The Applicants say it is
inappropriate and wasteful for the RAD to adopt administrative law standards of
review and simply duplicate the function of the Federal Court. The standards of
correctness and reasonableness were developed to govern the relationship
between the executive and judicial branches of government, and the Applicants
argue that different considerations apply when both the lower and higher
tribunal belong to the executive branch (British Columbia Society for the
Prevention of Cruelty to Animals v British Columbia (Farm Industry Review
Board), 2013 BCSC 2331, 67 Admin LR (5th) 152 [BC SPCA]). The
Applicants point out that many decisions of this Court have set aside decisions
of the RAD which have applied the reasonableness standard for similar reasons
(citing e.g. Huruglica at paragraphs 43-45).
[18]
The Respondent submits that the RAD should
review RPD decisions for palpable and overriding error (citing Spasoja at
paragraph 40). In its view, that conclusion is supported by the statutory
scheme, the legislative history of the RAD, and the central role of the RPD in
determining refugee claims and finding the facts. The Respondent points out that
the RPD is the only tribunal to which all eligible refugee claims are referred,
and it makes decisions on cessation and vacation of claims that will never go
to the RAD.
[19]
Furthermore, the Respondent argues that the Act
expressly requires the RPD to conduct an oral hearing, and the RPD is actively
involved in creating the record by questioning witnesses, distributing country
conditions documents, requesting information from the IRB Research Directorate,
and inquiring into “any matter that it considers relevant”
(Act, s 170(a)). These differences make the RPD much better suited than
the RAD to make findings of fact. Because it hears and elicits evidence, the
Respondent says that the RPD is more familiar with a refugee's claim as a
whole, and this is historically one of the reasons that appellate courts defer
to trial courts on factual questions (citing Housen v Nikolaisen, 2002
SCC 33 at paragraph 14, [2002] 2 S.C.R. 235 [Housen]). In the
Respondent's view, the RAD should only substitute its own opinion for that of
the RPD on questions of law.
[20]
The Respondent also states that, while the RAD
can substitute its disposition for that of the RPD's in some circumstances, the
Federal Court of Appeal can do the same with respect to decisions of the
Federal Court (Federal Courts Act, RSC 1985, c F-7, s 52(b)(i) [FCA]);
and yet, that power alone does not demand an appeal de novo. Neither
does the forward-looking assessment of risk in the refugee process require a
completely new assessment of the evidence by the RAD when it has not had the
benefit of hearing from the claimants directly. Thus, in situations where there
is no new evidence, the Respondent submits that the RAD is intended to serve a
true appellate function and search only for palpable and overriding error when
reviewing findings of fact. As that is functionally equivalent to the
reasonableness standard, the Respondent argues that the RAD did not err by
referring to Newton or Dunsmuir (citing Housen; and HL
v Canada (AG), 2005 SCC 25 at paragraph 110, [2005] 1 S.C.R. 401).
[21]
As mentioned above, the judges of this Court
disagree on the correct interpretation of the RAD's standard of review in
respect of the RPD's findings of fact and mixed fact and law. One line of cases
concludes that the RAD should review the RPD's findings of fact for palpable
and overriding errors (see e.g.: Eng v Canada (Citizenship and Immigration),
2014 FC 711 at paragraphs 26-34; Spasoja at paragraphs 14-46; and Triastcin
v Canada (Citizenship and Immigration), 2014 FC 975 (CanLII) at paragraphs
27-28). Another line of cases concludes that the RAD must independently come to
a decision and is not limited to intervening on the standard of palpable and
overriding error, although 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” (Huruglica
at paragraph 55; Yetna v Canada (Citizenship and Immigration), 2014 FC
858 at paragraphs 16-20; and Akuffo at paragraph 39; Ozdemir v Canada
(Citizenship and Immigration), 2015 FC 621 at paragraph 3).
[22]
In this case, the RAD clearly adopted the
factors found in Newton in determining the appropriate standard of
review in the appeal. Indeed, citing Newfoundland Nurses and Dunsmuir,
the RAD adopted a position of deference and applied a reasonableness standard
of review to the RPD's decision, stating as follows:
[29] For these reasons, the RAD
concludes that, in considering these appeals, 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.
[30] The appropriate standard of review
in these appeals 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.
[23]
Both lines of cases noted above have condemned
this approach by the RAD (see e.g. Alyafi at paragraphs 17-18, 39 and
46; Huruglica at paragraphs 45 and 54; Spasoja at
paragraphs 12-13, 19-25 and 32-38; Djossou at paragraph 37; Brodrick
at paragraphs 32-34; and Ching v Canada (Citizenship and Immigration),
2015 FC 725 at paragraphs 48, 50). The RAD has an appellate function, and it
cannot limit its analysis merely to whether the RPD acted reasonably and
reached a decision that fell within the range of acceptable outcomes which are
defensible in respect of the facts and the law. Applying the reasonableness
standard, as the RAD did in this case, is typically an error, since it denies
to appellants the appeal to which they were entitled (Alyafi at
paragraph 46; Siliya at paragraph 23; Djossou at paragraphs 38-44).
Accordingly, the Applicants have established that they have grounds for relief
under paragraph 18.1(4)(c) of the FCA.
[24]
This conclusion, however, need not always end
the matter (see e.g. Pataraia v Canada (Citizenship and Immigration),
2015 FC 465 at paragraphs 13-14; Ali v Canada (Citizenship and Immigration),
2015 FC 500 at paragraphs 8-9). The issue becomes whether relief should be
withheld in the face of such an error (see: Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 at paragraph 38, 372 DLR (4th) 567),
which in turn reduces to this question: might the RAD have reached a different
result had it selected an appropriate standard of review?
C.
Were the RAD’s determinations on credibility and
IFA unreasonable?
[25]
The Applicants criticize the RPD's credibility
finding, and they say the RAD should have considered whether it could grant an
oral hearing. In the Applicants' view, the RPD's finding was not made in clear
and unmistakable terms and no deference is owed to it by the RAD.
[26]
The Applicants also challenge the RAD's decision
regarding the IFA. The documentary evidence described widespread violence
against Shia Muslims in Karachi and stated that hundreds are killed every year,
but the RPD implied that the Applicants had to prove that every Shia Muslim in Pakistan was being persecuted. The RAD never explained why it upheld that finding by the
RPD, apart from saying that it might not have reached the same conclusion and
could not reweigh the evidence. However, the Applicants argue that is precisely
what the RAD should have done.
[27]
The Respondent argues that the Applicants cannot
succeed unless they can show it was unreasonable for the RAD to decide that
neither the RPD's credibility finding nor its IFA determination were palpable
and overriding errors. The Respondent contends that the RAD properly recognized
that the RPD did not ignore any evidence and explained that decision
sufficiently enough to satisfy the criteria set out in Newfoundland Nurses
(at paragraphs 14 and 16). The Respondent also says that the RPD never applied
an inappropriate standard of proof; the Principal Applicant simply failed to
establish any link between her attackers and any extremist organization with
credible evidence. The Respondent further argues that the RAD was not required
to reassess the Applicants' credibility. It was sufficient that the RAD noted
that the RPD based its adverse decision on a number of detailed factors, and
gave reasons for rejecting each of the Applicants' objections.
[28]
While the RPD's credibility finding might
survive no matter what standard of review was applied by the RAD in this case,
the same cannot be said for the IFA finding. On the contrary, when it
considered whether the violence against Shia Muslims in Pakistan was widespread
enough that the Applicants would not be safe in Karachi, the RAD stated (at
paragraph 42 of its decision) that “it is possible that
the RAD might have considered the same evidence and reached a different
conclusion.” The RAD refused to conduct its own analysis of the
evidence in this regard expressly because it was applying the reasonableness
standard. Under the approach set out in Huruglica, that is an error
since that particular finding depended only on documentary evidence which the
RAD could assess just as well as the RPD could (see Kurtzmalaj v Canada
(Citizenship and Immigration), 2014 FC 1072 at paragraphs 28-29 and 34).
[29]
The Respondent argues that the RAD’s approach
could still be appropriate if the palpable and overriding error standard is
applied, at least insofar as there are similarities between that standard and
the reasonableness standard (see Akuffo at para 38). This argument,
however, presumes that the RAD member, informed that it was an error to apply
the reasonableness standard, would have followed Spasoja and not Huruglica.
Nothing supports that presumption.
[30]
Furthermore, I also reject the Respondent's
argument that the Applicants need to prove that both the credibility finding
and the IFA finding were erroneous in order to attract relief. The credibility
finding related only to the RPD's determination that the attackers did not
belong to an extremist organization, and thus influenced the IFA decision only
insofar as it permitted the RPD to disregard evidence about the reach and
influence of such organizations. The other part of the IFA finding was
independent of that and based solely on the Applicants' profiles as Shia
Muslims and the risk they would be targeted by random sectarian violence in
Karachi. It was that part of the finding about which the RAD acknowledged that
it might have reached a different conclusion had it re-weighed the evidence.
[31]
Thus, it is possible that the RAD would have
reached a different result had it not erroneously applied the reasonableness
standard of review, and it would be inappropriate to withhold relief from the
Applicants.
V.
Conclusion
[32]
In view of the foregoing reasons, the RAD's
decision cannot be justified and is not defensible in respect of the facts and
the law. It must be set aside and the matter returned to the RAD for a new
determination.
[33]
In the result, therefore, the Applicants'
application for judicial review is granted. No question of general importance
is certified.
Email this Content