Docket: IMM-1272-14
Citation:
2015 FC 725
Ottawa, Ontario, June 9, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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WAI KHEONG
CHING
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Mr Wai Kheong Ching, a citizen of
Malaysia, arrived in Canada in 2005 and claimed refugee protection in July
2013.
[2]
Mr Ching claims that if he is returned to
Malaysia, he will face a risk of persecution by reason of race, nationality,
membership in a particular social group and political opinion. He also claims
that he faces a risk to his life, cruel and unusual treatment or punishment and
danger of torture in Malaysia because he will be required to participate in
training for the National Service.
[3]
The Refugee Protection Division of the
Immigration and Refugee Board [RPD] denied his claim for protection as a
Convention refugee and as a person in need of protection pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
[Act] on October 9, 2013. He then appealed the RPD’s decision to the Refugee
Appeal Division [RAD]. The RAD dismissed the appeal and confirmed the decision
of the RPD on January 5, 2014. The applicant now seeks judicial review of the
decision of the RAD pursuant to section 72 of the Act.
[4]
This application for judicial review is allowed
with respect to the section 97 claim only. The RAD erred in applying judicial
review principles and the reasonableness standard of review to the appeal of
the RPD decision and failed to observe principles of procedural fairness by
reviewing positive credibility findings of the RPD without providing the
applicant with an opportunity to respond to the RAD’s concerns about the RPD’s
credibility findings. Other aspects of the RAD decision are also problematic
and arise from the RAD’s approach to its appellate role.
Background
[5]
The applicant came to Canada on a visitor’s visa
in July 2005. He was required to report for training for the Malaysian National
Service in June 2006. Although he was subsequently granted a postponement of
his training for military service, he claims that he must report for duty upon
return to Malaysia. He claims that he fears he will die in his training. He
also claims abuse by his uncle, attacks by gangs due to his refusal to be
recruited and lack of police protection from the gangs. In addition, he claims
that he will be persecuted for his political opinion because he protested for
democracy and human rights in Malaysia.
[6]
Mr Ching made an application for permanent
residence in 2011 and then made another application based on Humanitarian and
Compassionate grounds in 2012, both of which were refused. He then claimed
refugee protection in 2013 based on the allegations described above.
[7]
Although the decision of the RAD is the subject
of this judicial review, the findings of the RPD are summarized to provide the
necessary context.
The RPD decision
[8]
The RPD made several findings including that:
the applicant was generally credible about his abuse by his uncle, gang recruitment
and training for the National Service; he demonstrated a nexus to a Convention
due to his political opinion concerning his opposition to the National Service;
his egregious delay in claiming protection was not consistent with his alleged
fear; he had not rebutted the presumption of state protection regarding gang
recruitment; he had not established that he would be personally harassed by
Malaysian authorities for his protesting activities; he failed to provide
objective evidence of the risk to his life in the National Service; and, he
would not face a risk of torture upon return, although he may be fined or
jailed for up to six months for not completing his National Service.
[9]
The RPD found that the determinative issue with
respect to the applicant’s section 96 claim was his “egregious” delay in
claiming protection and this was fatal to his claim. This finding was not
challenged by the applicant on appeal to the RAD.
[10]
With respect to the section 97 claim, the RPD
found that the determinative issues were the applicant’s failure to rebut the
presumption of state protection and his failure to establish that he would face
a risk to his life or danger of torture upon return.
[11]
On the appeal, the applicant argued:
•
The RPD erred in finding that he had not rebutted
the presumption of state protection;
•
The RPD erred in not fully assessing his
personalized risk pursuant to section 97; and,
•
That new evidence should be accepted in
accordance with subsection 110(4) of the Act to establish an objective basis
for his fear of dying in the National Service.
The RAD decision
[12]
After noting the issues raised by the applicant
in the appeal, the RAD stated that it focused on four issues:
•
Did the RPD err in its finding of fact that the
applicant’s allegations of fear of gangs were credible?
•
Did the RPD err in its finding of fact that the
applicant did not want to complete military service?
•
Did the RPD err in its finding of fact that the
applicant was a supporter of the opposition and that he demonstrated a nexus to
the Convention because of his imputed political opinion?
•
Did the RPD err in its finding of fact that the
applicant’s delay in claiming undermined his subjective fear, which was fatal
to his claim?
[13]
The RAD then considered the standard of review
it should apply to the appeal of the RPD decision. The RAD noted the provisions
of the Act, the factors set out Newton v Criminal Trial Lawyers’ Association,
2010 ABCA 399 at para 44, [2011] 4 WWR 232, and the differences between the
RPD, a tribunal of first instance, and the RAD, which was created to review the
decisions made by the RPD on questions of law, fact or mixed fact and law, with
the ability to substitute a different determination where appropriate. The RAD
noted that the RPD is, in most cases, in the best position to assess
credibility and to make findings on issues of law, fact or mixed fact and law
and concluded that it should apply the standard of reasonableness to these
aspects of the RPD’s decision.
[14]
The RAD considered the applicant’s request to
submit five articles as new evidence. The RAD referred to each article and
found that the articles were not relevant or material to the facts that
underpin the claim. The RAD noted with respect to subsection 110(4) and Rule
3(3)(g)(iii) of the Refugee Appeal Division Rules, SOR/2012-257 [RAD
Rules] that the applicant had provided a blanket statement that the documents
met the requirements of the Act but did not indicate how, as directed by the
Rule. The RAD also found the evidence was not admissible because it did “not
pass the requirements of Raza” (this refers to Raza v Canada
(Minister of Citizenship and Immigration), 2007 FCA 385, [2007] FCJ
No 1632 [Raza]).
[15]
Although the RAD indicated that it focussed on
the four issues set out above, the RAD considered all of the findings of the
RPD and found some to be unreasonable and others to be reasonable, but
concluded that the overall decision of the RPD was reasonable.
Findings found by the RAD to be unreasonable
[16]
The RAD found that the RPD erred in finding that
the applicant’s allegation of fear of gangs was credible because the RPD
omitted to consider evidence central to that claim. The RAD also found that the
RPD erred in not exploring omissions in the applicant’s testimony about his
efforts to seek police protection which were contradicted by the affidavit of
the applicant’s sister. Given that the RPD did not refer to the totality of the
evidence, the RPD’s finding about the applicant’s allegations of gang
recruitment, his fear of gangs and the refusal of the police to protect him were
not reasonable.
[17]
The RAD also found that the RPD’s finding that
the applicant had established a nexus to a Convention ground of political
opinion was not reasonable. The RAD noted that the applicant’s evidence to the
Board was inconsistent, but generally he was only a silent supporter.
[18]
The RAD also found that RPD erred in finding
that the applicant’s opposition to National Service was linked to imputed
political opinion. There was no factual basis to link participation in the
National Service with government suppression of opposition. The RAD concluded
that there was no sufficient evidence to ground a claim that the applicant
would be perceived as having a political opinion opposing the government.
Findings found by the RAD to be reasonable
[19]
The RAD found that the RPD’s finding that there
is no risk to the applicant’s life nor danger of torture arising from his
required National Service was reasonable; his fear was not objectively well
founded.
[20]
The RAD also noted that he could pay the fine
that may be imposed for failure to report for training, which would not be
onerous for him.
[21]
The RPDs finding that the applicant had not been
personally harassed by authorities in Malaysia due to his alleged opposition or
political profile was also found to be reasonable because there was no credible
evidence to support this claim.
[22]
In conclusion, the RAD found that, based on its
review of the totality of the evidence, the RPD erred in its treatment of the
evidence regarding the applicant’s political opinion and his fear of gangs.
[23]
The RAD found that the RPD did not err in
finding that the applicant’s delay in claiming protection was egregious and not
satisfactorily explained, noting this was not challenged in the appeal.
[24]
The RAD found that the RPD’s finding that the
applicant would not be personally subject to a risk to his life, to a risk of
cruel or unusual treatment or punishment or to a danger of torture pursuant to
section 97 was reasonable.
The Issues
[25]
This application raises several issues,
including: the role of the RAD on appeal and the standard of review it should
apply to a decision of the RPD; whether the RAD breached a duty of procedural
fairness to the applicant by reviewing findings of credibility without
providing the applicant an opportunity to address those findings and without
holding an oral hearing; whether the RAD erred in rejecting new evidence; and,
whether the RAD’s approach to this appeal could be perceived as demonstrating a
reasonable apprehension of bias.
The Applicant’s Submissions
[26]
The applicant submits that the RAD explored
issues, particularly the credibility findings of the RPD, that he did not raise
in his appeal without notice to him and without any opportunity for him to
respond. The applicant submits that this is breach of procedural fairness.
[27]
The applicant argues that the RAD erred in
adopting reasonableness as the standard of review and applying judicial review
principles to the appeal of the RPD decision.
[28]
The applicant notes that despite adopting the
reasonableness standard, which is an error, the RAD did not defer to the RPD’s
credibility findings. The RAD made its own credibility findings, but did not
conduct an oral hearing. The applicant argues that the RAD erred in not holding
an oral hearing in accordance with subsection 110(6) of the Act and/or in
accordance with the principles of procedural fairness.
[29]
The applicant further argues that the RAD erred
in rejecting his new evidence, including by relying on the test in Raza.
The applicant argues that Raza addresses the admissibility of new evidence
of risk on a Pre-Removal Risk Assessment [PRRA], which is a completely
different context, and should not apply to whether new evidence should be
admitted on an appeal pursuant to subsection 110(4). The applicant submits that
the new evidence is objective and supports his subjective fear of dying in the
National Service.
[30]
The applicant also suggests that the conduct of
the RAD could be perceived as showing a reasonable apprehension of bias because
the RAD went well beyond the issues he raised on appeal to ensure that his
appeal would not succeed. The applicant submits that the RAD’s adverse
credibility findings could disadvantage him in other future applications.
The Respondent’s Submissions
[31]
The respondent notes that, unlike the Rules for
the RPD, there is no requirement in the Rules for the RAD to provide notice to
appellants of the issues to be considered.
[32]
With respect to the applicable standard of
review, the respondent submits that this Court should apply the reasonableness
standard to the issue of the RAD’s choice of the reasonableness standard of
review to its appeal of decisions of the RPD.
[33]
The respondent also submits that the RAD did not
err in with respect to the standard of review; the RAD should apply the
reasonableness standard to appeals from the RPD on questions of fact and mixed
fact and law.
[34]
The respondent notes that the jurisprudence of
this Court supports the view that the RAD may defer to findings of the RPD
regarding credibility. The respondent adds that both the appellate standard of
palpable and overriding error and the judicial review standard of
reasonableness provide deference and would lead to the same result in this
case.
[35]
With respect to the merits of the appeal, the
respondent submits that the RAD reasonably rejected the new evidence in
accordance with the RAD Rules which require the appellant to indicate how the
new evidence relates to his appeal and in accordance with subsection 110(4). It
was also reasonable for the RAD to consider the test in Raza, although
it dealt with the application of section 113 of the Act, given the analogous
wording of subsection 110(4).
[36]
Moreover, the RAD considered the new evidence
and provided reasons for not accepting it; the articles did not address the
basis for the applicant’s fear but referred to a variety of illnesses, injuries
and individual disputes between members of the National Service.
[37]
The respondent further submits that the RAD did
not err by not holding an oral hearing. The issue of credibility was not
central to the RAD’s findings as there were many findings to support the RPD’s
decision and the RAD’s decision.
[38]
With respect to the applicant’s reference to
bias by the RAD, the respondent notes the high threshold to be met and submits
that the record does not disclose any evidence to support such an allegation.
The Applicant Is Not a Convention Refugee Pursuant to
Section 96
[39]
The RPD found that the applicant’s delay in
claiming protection was egregious and fatal to his claim pursuant to section
96. This finding was not challenged on appeal.
[40]
Despite the RAD’s confirmation of this finding
on the basis of the reasonableness standard of review, the RAD noted that this
finding was not challenged on appeal. In addition, the applicant agreed at the
hearing of this judicial review that the section 96 finding stands.
[41]
Therefore, the only issues on the appeal before
the RAD related to the section 97 claim. Similarly, the only issues that should
be considered on this judicial review of the RAD’s decision are those that relate
to the section 97 claim.
The Standard of Review
To be applied by the Court
[42]
The jurisprudence continues to develop with
respect to the standard of review that the Court should apply to the RAD’s
determination of the appropriate standard of review and to other specific
determinations, including the RAD’s credibility findings and findings whether
to admit new evidence.
[43]
Several recent cases have addressed the standard
of review to be applied by this Court to decisions of the RAD on the issue of
the standard of review the RAD should apply in appeals from the RPD. In Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799 at
paras 25-34, [2014] FCJ No 845, Justice Phelan provided a comprehensive
analysis leading to the conclusion that this Court should review the RAD’s
choice of standard of review on the correctness standard. Other decisions
followed the same approach including Iyamuremye v Canada (Minister of
Citizenship and Immigration), 2014 FC 494 at para 20, [2014]
FCJ No 523 [Iyamuremye]; Eng v Canada (Minister of Citizenship and
Immigration), 2014 FC 711 at paras 17-18, 245 ACWS (3d) 644; Alvarez
v Canada (Minister of Citizenship and Immigration), 2014 FC 702 at para 17,
[2014] FCJ No 740 [Alvarez]; Yetna v Canada (Minister of Citizenship
and Immigration), 2014 FC 858 at paras 14-15, [2014] FCJ No 906; Triastcin
v Canada (Minister of Citizenship and Immigration), 2014 FC 975 at paras
18-19, [2014] FCJ No 1011; Tamayo v Canada (Minister of Citizenship and
Immigration), 2014 FC 1127 at para 18, [2014] FCJ No 1172; and Bahta
v Canada (Minister of Citizenship and Immigration), 2014 FC 1245 at
para 10, 248 ACWS (3d) 419 [Bahta].
[44]
Justice Gagné reached the contrary conclusion,
also after conducting a comprehensive analysis, in Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063 at paras 17-26,
[2014] FCJ No 1116 [Akuffo]. Justice Gagné found that this Court should
apply the reasonableness standard to the review of decisions of the RAD on its
choice of the standard of review, noting that reasonableness is the presumptive
standard and that there are no other circumstances to justify departing from
the presumptive standard. Justice Martineau reached the same conclusion
following his analysis in Djossou v Canada (Minister of Citizenship and
Immigration), 2014 FC 1080 at paras 13-37, [2014] FCJ No 1130
[Djossou].
[45]
There is no dispute that the Court should review
the RAD’s application of the law to the facts of the case and the RAD’s
decision regarding the RPD’s credibility findings on the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 53-54,
[2008] 1 S.C.R. 190).
[46]
With respect to the admissibility of new
evidence, in Singh v Canada (Minister of Citizenship and Immigration),
2014 FC 1022 at paras 36-42, 246 ACWS (3d) 433 [Singh], Justice Gagné
held that the standard of reasonableness applies to questions regarding the
admissibility of new evidence before the RAD (see also Khachatourian v
Canada (Citizenship and Immigration), 2015 FC 182 at para 37, [2015] FCJ No
156 [Khachatourian]).
To be applied by the RAD to decisions of the RPD
[47]
I acknowledge the respondent’s position that the
RAD should apply the reasonableness standard to the appeal of RPD decisions,
but remain guided by the jurisprudence of this Court.
[48]
The jurisprudence has consistently held that it
is a reviewable error for the RAD to perform a judicial review function and
apply the reasonableness standard to the RPD’s decision. The RAD should perform
its appeal function: Huruglica, at para 54; Iyamuremye, at
para 38; Alyafi v Canada (Minister of Citizenship and Immigration), 2014
FC 952 at para 10, [2014] FCJ No 989; Guardado v Canada (Minister of
Citizenship and Immigration), 2014 FC 953 at para 4, [2014] FCJ No 1038; Diarra
v Canada (Minister of Citizenship and Immigration), 2014 FC 1009 at
para 29, [2014] FCJ No 1111; Djossou, at para 37; Bahta, at
paras 11-16; Aloulou v Canada (Minister of Citizenship and Immigration),
2014 FC 1236 at paras 52-59, [2014] FCJ No 1307 [Aloulou]; Bui v
Canada (Minister of Citizenship and Immigration), 2014 FC 1145 at para 22,
[2014] FCJ No 1271; Genu c Canada (Ministre de la Citoyenneté et
Immigration), 2015 CF 129 at para 30, [2015] ACF no 159; Alvarez,
at para 30 and other more recent cases.
[49]
With respect to questions of credibility, the
jurisprudence has found that the RAD may or should defer to the RPD because the
RPD has heard the witnesses directly, has had an opportunity to probe their
testimony or has had some advantage not enjoyed by the RAD; see, for example, Huruglica,
at para 55; Iyamuremye, at para 40; Akuffo, at para 27; Nahal
v Canada (Minister of Citizenship and Immigration), 2014 FC 1208 at para
25, [2014] FCJ No 1254. In Khachatourian, at para 31,
Justice Noël noted that the RAD should assume its appellate role and that the
same level of deference may not be applicable to credibility findings in an
appeal as in a judicial review. Justice Noël also noted that an independent
assessment or analysis of the evidence would be necessary to permit some level
of deference. Justice Mosley noted that this was the prevailing view in Balde
v Canada (Minister of Citizenship and Immigration), 2015 FC 624 at
para 23, [2015] FCJ No 641: “The court has been
consistent that the RAD ought to defer to findings of fact or credibility made
by the RPD but must also conduct its own analysis of those findings.”
[50]
In the present case, the RAD erred in
determining that the reasonableness standard applied and in taking a judicial
review approach to the appeal.
[51]
I note, however, that the RAD did not have the
guidance of the more recent jurisprudence at the time of the appeal.
[52]
As noted above, it is not an error for the RAD
to defer to findings with respect to credibility, where the RAD conducts a
sufficiently independent analysis of those findings. In the present case, the
RAD analyzed the evidence on the record to conclude that the specific
credibility findings were not supported and, in fact, were contradicted. The
RAD, therefore, found that the credibility findings were not reasonable. The
RAD would have logically reached the same finding – that the credibility
findings were flawed – if it had applied a less deferential standard of review.
[53]
However, the credibility findings were not
determinative of the section 96 claim and the only issues on the appeal related
to the section 97 claim.
[54]
As discussed further below, the RAD erred in not
providing the applicant with any opportunity to make submissions on the RAD’s
concerns about the credibility findings, which had not been challenged by the
applicant.
The New Evidence
[55]
The RAD’s determination whether to accept new
evidence on the appeal is its own finding, based on the Act and the applicable
Rules. The issue is whether the RAD’s rejection of the new evidence is
reasonable (Singh, at paras 36-42; Khachatourian, at para
37).
[56]
I agree with the applicant that the Raza test
should not automatically apply to a determination under subsection 110(4). The
Raza test or factors, which include consideration of credibility,
relevance, newness and materiality, are not necessarily applicable to
subsection 110(4) which governs whether new evidence is admissible in the
context of an appeal as opposed to a PRRA. In Singh, at para 57,
Justice Gagné noted that the context is an important distinguishing factor and
that it should not be assumed that the Raza factors govern subsection
110(4) determinations regarding the admissibility of new evidence.
[57]
In the present case, the RAD referred to the Raza
factors of relevance and materiality, although it misquoted the materiality
factor. The RAD stated more generally that the new evidence did not meet the
requirements of Raza. The RAD also based its rejection on the wording of
subsection 110(4) and Rule 33 which required the applicant to link his new
evidence to his appeal.
[58]
Given that the application for the judicial
review must be allowed based on the RAD’s error in applying the reasonableness
standard, on the reconsideration of the appeal, the RAD should consider whether
the new evidence meets the requirements of the Act and the Rules. 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. In the
present case, the applicant sought to admit new evidence related to his
allegations of personalised risk under section 97.
An Oral Hearing is the Exception
[59]
The provisions of the Act make it clear that the
RAD conducts a paper based appeal, subject to specific exceptions.
[60]
Subsection 110(3) provides:
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(3) Subject to
subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed
without a hearing, on the basis of the record of the proceedings of the
Refugee Protection Division, and may accept documentary evidence and
written submissions from the Minister and the person who is the subject of
the appeal and, in the case of a matter that is conducted before a panel of
three members, written submissions from a representative or agent of the
United Nations High Commissioner for Refugees and any other person described
in the rules of the Board.
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(3) Sous réserve
des paragraphes (3.1), (4) et (6), la section procède sans tenir
d’audience en se fondant sur le dossier de la Section de la protection des
réfugiés, mais peut recevoir des éléments de preuve documentaire et des
observations écrites du ministre et de la personne en cause ainsi que,
s’agissant d’une affaire tenue devant un tribunal constitué de trois
commissaires, des observations écrites du représentant ou mandataire du
Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre
personne visée par les règles de la Commission.
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[Emphasis added]
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[soulignement
ajoutés]
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[61]
Subsection 110(6) gives the RAD discretion to
hold a hearing where three conditions are met:
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(6) The Refugee
Appeal Division may hold a hearing if, in its opinion, there is documentary
evidence referred to in subsection (3)
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(6) La section
peut tenir une audience si elle estime qu’il existe des éléments de preuve
documentaire visés au paragraphe (3) qui, à la fois :
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(a) that raises a
serious issue with respect to the credibility of the person who is the
subject of the appeal;
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a) soulèvent une
question importante en ce qui concerne la crédibilité de la personne en
cause;
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(b) that is
central to the decision with respect to the refugee protection claim; and
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b) sont
essentiels pour la prise de la décision relative à la demande d’asile;
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(c) that, if
accepted, would justify allowing or rejecting the refugee protection claim.
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c) à supposer
qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou
refusée, selon le cas.
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[62]
The applicant argues that the RAD should have
held an oral hearing because it reviewed the RPD’s credibility findings, which
the applicant had not raised on appeal, but did not provide any opportunity for
the applicant to make submissions to respond to the RAD’s concerns.
[63]
The Board’s discretion to hold a hearing would
not come into play in these circumstances because the RAD relied on the record
of the RPD and not on other documentary evidence. In addition, the credibility
findings made by the RPD were not central to the current decision with respect
to refugee protection. Despite making some positive credibility findings, the
RPD rejected the applicant’s claim for other determinative reasons.
[64]
However, the issue of whether the RAD should
have provided the applicant with an opportunity to respond to the RAD’s
concerns about the RPD’s credibility findings requires further consideration,
apart from the requirements of subsection 110(6).
Procedural Fairness
[65]
As noted above, the RAD should assume its
appellate role rather than adopt judicial review principles. In the present
case, the RAD adopted a judicial review approach and the reasonableness
standard of review and confirmed the determinative findings of the RPD, while
at the same time considering a wider range of issues, as would be appropriate
on a full fact based appeal. However, the RAD did not consider whether it had
the discretion to raise a new issue, whether it should exercise any such
discretion or whether this would engage issues of procedural fairness.
[66]
In R v Mian, 2014 SCC 54, [2014] 2
SCR 689 [Mian], the Supreme Court of Canada addressed the scope of an
appellate court’s jurisdiction to raise new issues, what constitutes a new
issue, when such jurisdiction should be exercised and the procedures to be
followed. Although Mian was a criminal case, the principles have been
applied in other proceedings, including the administrative context.
[67]
The Court defined a “new issue” at para 30:
An issue is new when it raises a new basis
for potentially finding error in the decision under appeal beyond the grounds
of appeal as framed by the parties. Genuinely new issues are legally and
factually distinct from the grounds of appeal raised by the parties (see Quan
v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39) and cannot
reasonably be said to stem from the issues as framed by the parties. It
follows from this definition that a new issue will require notifying the
parties in advance so that they are able to address it adequately. [Emphasis
added]
[68]
The Court concluded at para 41, that although an
appellate court has jurisdiction to raise a new issue, this would be rare and
only “when failing to do so would risk an injustice.
The court should also consider whether there is a sufficient record on which to
raise the issue and whether raising the issue would result in procedural
prejudice to any party.”
[69]
The Court elaborated on the considerations
regarding the discretion of appellate courts to raise new issues, including:
the jurisdiction of the court to consider the issue; whether there is a
sufficient basis in the record on which to resolve the issue; and, whether
there would be any procedural prejudice to either party (i.e. whether the
parties will have the opportunity to respond) (at paras 50-52).
[70]
The Court noted that when the appellate court
raises a new issue, generally, the parties must be notified and given the
opportunity to respond to the new issue.
[71]
In my view, these principles should apply beyond
the context of criminal appeals and, with the necessary modifications, to the
context of appeals before the RAD. The RAD should first consider if the issue
is “new” and if failing to raise the new issue would risk injustice. If the RAD
pursues the new issue, it seems clear that procedural fairness requires that
the party or parties affected be given notice and an opportunity to make
submissions.
[72]
In conducting a full fact based appeal, the RAD
would not be precluded from considering new issues not raised on the appeal. In
the present case, the applicant raised three issues. The RAD indicated it would
focus on four issues, but only one was related to one of the issues raised by
the applicant regarding his fear of National Service. If the principles in Mian
are adapted and applied to appeals conducted by the RAD, at minimum, the RAD
should have considered whether the credibility findings were new issues and
whether it was essential to address these findings to avoid an injustice. If
so, the applicant should have had an opportunity to make submissions on the
issue.
[73]
As noted above, the determinative finding for
the section 96 claim was not credibility but the applicant’s delay in seeking
protection. The credibility findings found to be unreasonable by the RAD
related to the applicant’s fear of gangs and his allegations that the police
refused to protect him. The RAD need not have revisited these issues given that
the section 96 claim was denied based on the applicant’s delay in seeking
protection and this finding was not appealed. However, as the applicant notes,
the RAD’s negative credibility findings could have a negative impact on future
decisions regarding his status in Canada.
[74]
Whether or not the principles in Mian
should be applied by the RAD, it is a basic principle of natural justice and
procedural fairness that a party should have an opportunity to respond to new
issues and concerns that will have a bearing on a decision affecting them.
[75]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at paras 23-28, [1999] FCJ No 39, the
Supreme Court of Canada set out a list factors affecting the duty of procedural
fairness and emphasized that the content of the duty must be determined in the
specific context of each case. The Court noted that the
factors were not exhaustive and reiterated that procedural fairness is based on
the principle that individuals affected by decisions should have the
opportunity to present their case and to have decisions affecting their rights
and interests made in a fair and impartial and open process “appropriate to the statutory,
institutional, and social context of the decision.”
[76]
Although the scope of the duty will vary, at
minimum, the applicant should have had some opportunity to respond to the RAD’s
concerns regarding the RPD’s positive credibility findings, despite that these
findings would not change the outcome of the current decision.
The RAD did not demonstrate bias
[77]
The test for determining whether actual bias or
a reasonable apprehension of bias exists is what an informed person, viewing
the matter realistically and practically – and having thought the matter
through – would conclude and whether that informed person would think that the
decision maker, in this case the RAD, either consciously or unconsciously,
would not decide fairly (Committee for Justice and Liberty v Canada
(National Energy Board), [1978] 1 S.C.R. 369 at 394, 68 DLR (3d) 716).
[78]
Allegations of bias are serious and should not
be made lightly.
[79]
There is nothing on the record to suggest any
bias on the part of the RAD. Although the RAD explored issues beyond those
raised by the applicant, this appears to be related to how the RAD viewed its
appellate role and nothing more.
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