Docket: IMM-2268-14
Citation:
2015 FC 423
Ottawa, Ontario, April 9, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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FERNANDO NGANDU
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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
[1]
Fernando Ngandu (the Applicant) has brought an
application for judicial review pursuant to s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of the Refugee
Appeal Division of the Immigration and Refugee Board (the RAD). The RAD upheld
the decision of the Refugee Protection Division (RPD) that the Applicant is
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 following reasons, the application for
judicial review is allowed and the matter is remitted to the RAD for
re-determination by a differently constituted panel.
I.
Background
[3]
The Applicant is a citizen of Angola. He alleged before the RPD that he had been tortured by government agents because of his
participation in protests against the government and because of his membership in
a small youth group called the Movimiento Social Revolucionario
(the MSR). The Applicant said that he had participated in a protest in
November, 2012 which was violently ended by the police. He was arrested, detained
and tortured, ultimately resulting in his hospitalisation for a head injury.
[4]
After two months in the hospital, his mother
bribed a doctor to release him. He then learned that his father and siblings
were missing after their participation in anti-government protests, and a
leader of the MSR had been killed. In the months that followed, the Applicant
distributed posters to raise awareness of government corruption. There was an
incident where a government agent fired a gun at him, and the Applicant then decided
to leave Angola. He arrived in Canada on May 2, 2013 and made a refugee claim.
[5]
The RPD dismissed the Applicant’s claim on the
ground that he lacked credibility. Based on a number of factors the RPD found
that the Applicant had never been a member of the MSR: the leaders of the group
identified in the documentary evidence were not the same as those identified by
the Applicant in his testimony; the Applicant had provided no evidence to
support his claim of being hospitalised for two months; and the Applicant’s
narrative and testimony were contradictory with respect to when and where he
learned that his father and siblings had been arrested. The RPD also drew a
negative inference from the Applicant’s inability to remember the brand name of
the printer he used to produce the posters and from contradictions in the
Applicant’s testimony regarding why he chose to come to Canada instead of making a refugee claim in Brazil.
[6]
The RAD confirmed the RPD’s decision. It refused
to admit new evidence in the form of a letter from the Applicant’s physician
regarding his cognitive impairment on the ground that the letter was not material.
Applying the standard of reasonableness, the RAD concluded that the RPD had erred
with respect to some of its credibility findings, but the decision as a whole was
reasonable. The RAD also found that the RPD had satisfied the requirements of
procedural fairness.
II.
Issues
[7]
This application for judicial review raises the
following issues:
A. Whether the RAD’s refusal to admit the letter from the Applicant’s
physician as new evidence was reasonable;
B. Whether the RAD’s review of the RPD’s findings of credibility was
based on the correct standard of review and, if so, whether it was reasonable;
and
C. Whether a question should be certified for appeal.
III.
Standard of Review
[8]
The RAD became operational in December, 2012. It
is a relatively new appellate tribunal, and the law is not yet settled
regarding the standard of review to be applied by this Court to the RAD’s determination
of its own standard of review. Some decisions of this Court have applied the
standard of correctness, based on the assumption that the scope of the RAD’s
appellate review, although a matter of interpretation by the RAD of its home
statute, is a question of general importance to the legal system and is beyond
the RAD’s expertise and experience (see, for example, Justice Phelan’s decision
in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 at
paras 25-34 [Huruglica] and Justice Barnes’ decision in Sow v Canada
(Citizenship and Immigration), 2015 FC 295 at para 8 [Sow]).
[9]
By contrast, Justice Gagné in Akuffo v Canada
(Citizenship and Immigration), 2014 FC 1063 at paras 17-26 [Akuffo] and
Justice Martineau in Djossou v Canada (Citizenship and Immigration),
2014 FC 1080 at paras 13-37 [Djossou] found that this Court should apply
the standard of reasonableness when considering the RAD’s determination of its
own standard of review. They concluded that this is not a question of law of
central importance to the legal system as a whole, nor does it fall outside the
expertise of the RAD.
[10]
Whether the Court applies the standard of
reasonableness or correctness to the RAD’s identification of its own standard
of review is not always determinative of the outcome of an application for
judicial review before this Court (Djossou at para 37). As Justice Simon
Noël remarked in Yin v Canada (Citizenship and Immigration), 2014 FC
1209 at para 33:
[…] the standard of review this Court should
apply when reviewing the standard of intervention chosen by the RAD in its
review of a RPD decision is undecided. As noted, this question is not
determinative with regards to the case at bar. I therefore adhere to Justice
Martineau’s approach in Djossou, supra at para 37, that until
this question is resolved by the Federal Court of Appeal, a pragmatic approach
should be used for the determination of the present judicial review.
[11]
Nevertheless, this Court is unanimous that the
RAD commits an error when it applies a judicial review standard while
fulfilling its appellate functions (Djossou at paras 7, 37).
[12]
The RAD’s application of the law to the facts of
the case and its consideration of the RPD’s credibility findings are both
subject to review by this Court against a standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9; Nahal c Canada (Citoyenneté et Immigration),
2014 CF 1208 at para 25).
[13]
Finally, in Singh v Canada (Citizenship and Immigration), 2014 FC 1022 at paras 36-42 [Singh], Justice Gagné
found that the standard of reasonableness also applies to questions regarding
the admissibility of new evidence before the RAD. (See
also Bui c Canada (Citoyenneté et Immigration), 2014 CF 1145 at para 17.)
IV.
Analysis
A.
Whether the RAD’s refusal to admit the letter
from the Applicant’s physician as new evidence was reasonable.
[14]
The Applicant objects to the RAD’s reliance on
the Federal Court of Appeal’s decision in Raza v Canada (Citizenship and
Immigration), 2007 FCA 385 in its determination of whether the new letter
from the Applicant’s physician should have been admitted into evidence. Raza
concerned the admission of new evidence in the context of a Pre-Removal Risk
Assessment (PRRA). The RAD did not explain why the criteria for admitting new
evidence in the context of a PRRA should also apply to an appeal before the
RAD.
[15]
The Applicant notes that in Singh and in Khachatourian
v Canada (Citizenship and Immigration), 2015 FC 182 at para 37 [Khachatourian],
this Court held that the criteria identified in Raza should not automatically
be applied to a determination of whether new evidence may be adduced before the
RAD. In addition, the Applicant argues that even if this Court were to find
that it was reasonable for the RAD to adopt the Raza criteria, the RAD’s
application of these criteria was unreasonable because its analysis of the
letter’s materiality was flawed.
[16]
The Respondent 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 is therefore
reasonable for the RAD to apply the Raza criteria to determine whether
new evidence may be admitted before the RAD.
[17]
With respect to an appeal before the RAD, s
110(4) of the IRPA provides as follows:
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(4) On appeal, the person who is the subject of the appeal may
present only evidence that arose after the rejection of their claim or
that was not reasonably available, or that the person could not reasonably
have been expected in the circumstances to have presented, at the time of the
rejection.
[emphasis added]
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(4) Dans le cadre
de l’appel, la personne en cause ne peut présenter que des éléments de
preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement
présentés, dans les circonstances, au moment du rejet.
[non-souligné dans l’original.]
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[18]
In the context of a PRRA, s 113(a) of the IRPA
provides as follows:
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(a) an applicant
whose claim to refugee protection has been rejected may present only new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
[emphasis added]
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a) le demandeur
d’asile débouté ne peut présenter que des éléments de preuve survenus
depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils
l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de
s’attendre à ce qu’il les ait présentés au moment du rejet;
[non-souligné dans l’original.]
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[19]
However, the similarity of the provisions does
not necessarily mean that the Raza criteria apply to the admission of
new evidence in an appeal before the RAD. In Singh, Justice Gagné described
the function of a PRRA officer as follows (at para 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.
The underlying rationale for paragraph 113(a) of the Act is not
appellate in nature but rather to assure the claimant has a last chance to have
any new risks of refoulement (not previously assessed by the RPD) assessed
before removal can take place.
[emphasis in original]
[20]
This may be contrasted with 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).
[21]
In this case, the RAD accepted that the letter from
the Applicant’s physician was new, credible and relevant, but found that it was
not material because the physician was not a qualified neurologist and his
report would therefore have little bearing on the RAD’s assessment of the
Applicant’s cognitive functioning. The RAD reasoned that if the physician
suspected that the Applicant’s cognitive functioning was deteriorating, then he
would have referred him to a neurologist for assessment.
[22]
For the reasons expressed by this Court in Singh
and Katchatourian, I conclude that the RAD erred in applying the Raza
criteria to its determination of whether to admit the new letter from the
Applicant’s physician. I am unable to say whether a more flexible approach
would have caused the RAD to admit the physician’s letter into evidence, nor
whether this would have enabled the Applicant to obtain an oral hearing or given
him an opportunity to explain the inconsistencies in his testimony that caused
the RPD to make adverse findings of credibility. Because I am unable to
conclude whether the RAD’s decision would have been different if the more
recent letter from the physician had been admitted, the application for
judicial review must be allowed.
B.
Whether the RAD’s review of the RPD’s findings
of credibility was based on the correct standard of review and, if so, whether
it was reasonable.
[23]
The Applicant argues that the RAD erred by assessing
the RPD’s decision as if it were conducting an application for judicial review.
The RAD is a specialized tribunal that hears appeals from the RPD, whose
members are presumed to have less expertise than members of the RAD. In
addition, the RAD has the power to issue decisions with precedential value and
to consider questions of fact, law, or mixed fact and law. The RAD may hold an
oral hearing when there is new evidence that relates to a question of
credibility. Finally, the RAD has the power not only to set aside a decision of
the RPD, but also to substitute its own decision.
[24]
The Applicant points out that this Court has
ruled that the RAD must not apply the standard of judicial review when
conducting an appeal, and in this case the RAD did not adopt any of the approaches
that have been recognized by this Court as appropriate. Accordingly, the
Applicant was denied his right to a meaningful appeal.
[25]
The Applicant also disputes the RAD’s assessment
of the RPD’s credibility findings. The RAD concluded that it was reasonable for
the RPD to draw an adverse finding of credibility from the Applicant’s unsatisfactory
explanation of how he learned of the death of one of the MSR’s leaders. However,
contrary to the RAD’s finding, the RPD in fact accepted that there had been an
error of translation, and concluded that the discrepancy was “more apparent than real.”
[26]
The Respondent says that it was open to the RAD to
apply the standard of reasonableness when reviewing the RPD’s findings of
credibility, because the RAD owes deference to the RPD in this regard. Appeals
before the RAD are usually conducted in writing, and the RAD accepts new
evidence and holds hearings only in limited circumstances. According to the
Respondent, the RPD “plays the primary role in the
refugee determination process”. The RPD is in the best position to
assess the evidence, because it sees and hears witnesses’ testimony. This Court
has found that the RAD owes deference to the RPD’s credibility findings when
they are based on witnesses’ testimony (Allalou v Canada (Citizenship and
Immigration), 2014 FC 1084 at paras 17-20 [Allalou]).
[27]
The Respondent maintains that this Court erred
in Huruglica and the cases that have followed it insofar as these stand
for the proposition that the RAD owes no deference to factual findings of the
RPD that are not dependent on witness testimony. According to the Respondent, these
cases “did not properly take into account the
importance of the hearing process which allows the RPD to have a deeper
engagement with the entire evidentiary record.” The Respondent
recognizes that the RAD “may have equal expertise”
with respect to assessing country condition reports, but argues that requiring
the RAD to conduct an independent review is incompatible with the legislative
objective of creating an efficient and effective appeal mechanism.
[28]
The Respondent therefore defends the RAD’s
application of the reasonableness standard to its review of the RPD’s decision.
Alternatively, the Respondent asserts that the proper standard of review for questions
of fact is the appellate standard of overriding and palpable error. In this
case, applying that standard produces the same result since it is functionally
equivalent to the standard of reasonableness (HL v Canada (Attorney General), 2005 SCC 25 at para 110).
[29]
Finally, the Respondent says that the RAD’s
misunderstanding of the apparent discrepancy in the Applicant’s testimony about
how he learned of the death of a leader of the MSR was not central to its
decision, since many other conclusions regarding his credibility were not
affected by this error.
[30]
Despite the Respondent’s able arguments, I find
myself in agreement with the Applicant. This Court has ruled repeatedly that
the RAD commits an error when it applies the standard of reasonableness to its
review of the RPD’s factual findings (Djossou at paras 6 and 7).
[31]
I acknowledge that the RAD owes deference to an
assessment of credibility by the RPD that is based on witness testimony. As the
Supreme Court of Canada observed in R v NS, 2012 SCC 72 at para 25:
It is a settled axiom of appellate review that
deference should be shown to the trier of fact on issues of credibility because
trial judges (and juries) have the “overwhelming advantage” of seeing and
hearing the witness — an advantage that a written transcript cannot replicate: Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; see
also White v. The King, [1947] S.C.R. 268, at p. 272; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131. This advantage is described as
stemming from the ability to assess the demeanour of the witness, that is, to see how the witness gives her evidence and
responds to cross-examination.
[emphasis original]
[32]
However, the Respondent goes further and says
that the RAD owes deference to the RPD with respect to all factual findings. Most
judges of this Court have held that, because the RAD is a specialized tribunal
which conducts a “full fact-based appeal”, it
owes deference to the RPD only when a witness’ credibility is critical or
determinative or when the RPD enjoys a particular advantage (Huruglica
at paras 54-55; Yetna v Canada (Citizenship and Immigration), 2014 FC
858 at para 17; Akuffo at para 39; Bahta v Canada (Citizenship and
Immigration), 2014 FC 1245 at para 16; Sow at para 13; see contra
Spasoja v Canada (Citizenship and Immigration), 2014 FC 913 at para 40 [Spasoja]).
In Djossou at para 70, Justice Martineau concluded that the RPD is in no
better position than the RAD to make factual findings that are not wholly
dependent on testimony:
From the perspective of establishing facts,
determining whether there is a well‑founded fear of persecution requires
assessing a refugee claimant’s subjective fear—regarding not only the
credibility of his or her narrative—but also its objective basis in light of
the documentary evidence pertaining to the conditions in the country in
question. On appeal, the RAD will also have access to the RPD’s record
(including recordings) and all the documentary evidence (including the NDP of
the country in question). Apart from a pure credibility issue (in passing, what
is credibility?), one may reasonably ask whether a RAD member is in just as
good a position as a RPD member to reassess the evidence in the record where it
is alleged on appeal that the RPD erred in its assessment of the evidence as a
whole, which is precisely the principal complaint that the applicant made
against the RPD. A number of my colleagues think so, and I am also of that
opinion.
[33]
Although not unanimous on this point (see Spasoja
at para 39), most judges of this Court have concluded that the RAD must conduct
its own independent assessment of the evidence (Iyamuremye v Canada
(Citizenship and Immigration), 2014 FC 494 at para 41; Huruglica at
para 47; Njeukamv Canada (Citizenship and Immigration), 2014 FC 859 at
para 15; Akuffo at para 45; Djossou at para 53). The RAD’s
obligation to conduct an independent assessment of the evidence extends to
questions of credibility.
[34]
Some decisions of this Court have held that the
RAD does not commit a reviewable error when it applies the standard of
reasonableness to findings of pure credibility (Njeukam; Akuffo, Allalou;
Yin). However, as explained by Justice Simon Noël in 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 (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.”
[35]
The Respondent cautions that in order to conduct
an independent assessment of the evidence the RAD member would have to read “thousands of pages of documents”, and argues that this would
be incompatible with the legislative goal of creating an efficient
appeal system. However, this must be reconciled with the RAD’s power to
substitute its own determination for that of the RPD and Parliament’s intention
to provide a “full fact-based appeal” (Huruglica
at para 40). In the words of Justice Shore, “the idea
that the RAD may substitute an impugned decision by a determination that should
have been rendered without first assessing the evidence is inconsistent with
the purpose of the IRPA” (Triastcin v Canada (Citizenship and
Immigration), 2014 FC 975 at para 25).
[36]
In this case, the RAD was wrong to review the
RPD’s findings of credibility against the standard of reasonableness. The RAD’s
decision does not permit this Court to conclude that it consistently conducted
an independent assessment of the evidence. The RAD reached an independent
conclusion with respect to the RPD’s erroneous finding of a contradiction in
the Applicant’s explanation for claiming refugee status in Canada rather than in Brazil. However, the RAD did not conduct an independent assessment of the RPD’s
adverse credibility finding regarding the Applicant’s allegations of participation
in protests, detention and torture. Rather than evaluating the evidence as a
whole, the RAD first attempted to supplement the incomplete reasons of the RPD,
incorrectly citing Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 as its authority for doing so.
[37]
Finally, the RAD’s misapprehension of the RPD’s
conclusion regarding the “more apparent than real”
contradiction in the Applicant’s testimony with respect to how he learned of the
death of an MSR leader provides another basis for allowing the application for
judicial review. The RAD held that the RPD’s decision as a whole was
reasonable, even though it found some of the RPD’s negative credibility
findings to be unreasonable. If the RAD had not misapprehended the RPD’s
determination on this question of credibility, this may have shifted the
balance and caused the RAD to conclude that the RPD’s decision as a whole was
unreasonable.
[38]
The application for judicial review is therefore
allowed.
C.
Whether a question should be certified for
appeal.
[39]
Two of three determinative issues in this
application for judicial review have previously been certified for appeal. If I
had decided the case against the Applicant, then I might have certified
questions for appeal to preserve his procedural rights in the event that
appellate jurisprudence changed the law in his favour. However, as the
Applicant has been successful in this application for judicial review, and the
disputed legal issues will be determined by the Federal Court of Appeal in
other cases, I do not find it necessary to certify questions for appeal in this
case.
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