Docket: IMM-1049-15
Citation:
2016 FC 25
Québec, Québec, January 8, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SHAHLA KHAKPOUR
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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]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board [IRB], rejecting the applicant’s request to
reopen her appeal from the Refugee Protection Division [RPD] of the IRB which
had been previously dismissed by the RAD for lack of perfection.
[2]
For the reasons that follow I am of the view
that the application should be dismissed.
I.
Background
[3]
The applicant claims to be a citizen and
national of Iran. The applicant alleges that she was hassled and detained by
Iranian security forces due to her religious beliefs and that in June, 2013 she
was detained, assaulted and told to denounce her faith. The applicant further
claims that she left Iran in July, 2013 travelling on fraudulent documents and
making a claim for protection on arrival in Canada.
A.
RPD Decision
[4]
The RPD found that the applicant was neither a
Convention refugee nor person in need of protection with the determinative
issues being identity and credibility. The applicant was found to be so lacking
in credibility that the entirety of her evidence was tainted and thus the RPD
rejected her claim for having no credible basis. The RPD found that the
applicant may have at one point been a national Iran but the various identity
documents she presented were either fraudulent or obtained in a fraudulent
fashion. The RPD concluded that the applicant had not been in Iran in the
recent past including the period of time when the alleged persecution occurred
although it did accept that the applicant may be the mother of two witnesses
that appeared before the RPD on the basis of DNA evidence.
[5]
The RPD notes, relying on the decision of
Justice Michel Shore in Diarra v Canada (Minister of Citizenship and
Immigration), 2014 FC 123 at para 32, that where an applicant has not
established identity a negative conclusion as to credibility will almost
inevitably be drawn and can be dispositive of the claim. The RPD then
undertook a lengthy credibility analysis, concluding at paragraph 33 that:
[33] The credibility concerns with the
claimant’s evidence are so overwhelming that the panel cannot believe anything
she says. The documents she has produced from Iran have photos of the claimant
on them from almost 20 years ago. There has been no reasonable explanation as
to why all her Iranian identity documents have such old photos. The panel does
not need to know or to speculate about the reason for this major irregularity. The
claimant’s credibility has been destroyed by her testimony about these
documents. She is not a reliable witness. She has obtained and used three
fraudulent passports in the course of coming to Canada. She has shown herself
to be someone with access to fraudulent documents. This fact, coupled with her
incredible testimony, leads the panel to the conclusion that her story about
being persecuted in 2013 in Iran has been fabricated for the purpose of
establishing a refugee claim. The panel finds that she did not suffer the
persecution in Iran as she alleged and when she alleged.
B.
RAD Dismissal of Appeal
[6]
The applicant submitted a Notice of Appeal to
the RAD on July 14, 2014 which stated she received the RPD’s decision on June
30, 2014. On July 21, 2014 the RAD sent the applicant a letter advising that
the appellant record was due 30 days after the date the applicant received the
RPD reasons. The applicant did not submit an appellant record.
[7]
On September 10, 2014, the RAD dismissed the
applicant’s appeal from the RPD for lack of perfection. The RAD noted that the
RPD decision was dated June 17, 2014 and was deemed to be received by the
applicant on June 24, 2014. The RAD further noted that paragraph 159.91(1)(b)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
provides that the time limit for a person to perfect an appeal is 30 days after
the day on which the person or Minister receives reasons for the decision.
However, the RAD did not receive an appeal record or an application for an
extension of time to perfect an appeal.
C.
Application to Reopen
[8]
On November 6, 2014 the applicant submitted an
application to the RAD to reopen the dismissed appeal. That application
contained an affidavit from the applicant dated September 28, 2014 which
included the following explanation:
This affidavit is being filed late due to
reasons outside my control. I required additional evidence to prove my identity
and residency in Iran because the documents available in Canada were
insufficient. It took time to contact people in Iran, obtain documents, have
them translated into English and then delivered to Canada. The delay is also
due to the difficulties I have encountered in trying to convince people to help
me as they fear consequences of acting against Iranian government.
D.
RAD Decision under Review
[9]
In dismissing the applicant’s application to
reopen the appeal, the RAD notes that the applicant has not established, as
required by sub-rule 49(6) of the Refugee Appeal Division Rules,
SOR/2012-257 [RAD Rules], that there had been a failure to observe a principle
of natural justice in the dismissal of the appeal. The RAD decision notes that
the RAD waited 48 days beyond the perfection due date arising from the
applicant’s deemed receipt of the RPD’s reasons on June 24, 2014, and further
noted that if it accepted the date the applicant advised in her Notice of
Appeal as the date of receipt, June 30, 2014, then the RAD waited 42 days after
the due date to perfect before dismissing the appeal. The RAD further found
that the circumstances to perfect the appeal were not beyond the applicant’s
control.
II.
Position of the Parties
A.
Applicant’s Position
[10]
The applicant makes minimal submissions in
relation to the actual decision under review in this case, focusing instead on
the RPD decision dismissing the refugee claim on the sole basis that the
applicant was not a resident of Iran during the material time period.
[11]
The applicant argues that the RPD erred by
basing its credibility findings on what the applicant characterizes as the
implausibility of the evidence, not inconsistencies in the testimony before it.
The applicant argues that implausibility findings must be made in only the
clearest of cases, but in this case the findings were based on perception, not
evidence.
[12]
The applicant further submits that the RPD erred
in dismissing her claim without proceeding to an assessment of the substantive
merits of the claim, and this constitutes a denial of basic fairness. The
applicant argues that despite the residency and identity concerns of the RPD
there was a finding of nationality. The finding that the applicant was an
Iranian national is, in the applicant’s submissions, sufficient to trigger an
obligation on the part of the RPD to undertake a substantive review of the
applicant’s claim, which the RPD did not do. As a result the applicant is
facing deportation to Iran without having had her risk assessed.
[13]
Finally the applicant argues a breach of the
duty of fairness owed the applicant in that she was not advised that the RPD
concern was one of residency, not nationality. The applicant also argues that
the RPD improperly failed to extend the applicant the time required to allow
the Canadian Border Services Agency to investigate concerns relating to
residency.
B.
Respondent’s Position
[14]
The respondent submits that the decision under
review in this application is the decision of the RAD not to reopen the
applicant’s appeal, rather than the RPD’s decision. The respondent further
submits that the RAD’s discretion when considering an application to reopen is
limited to circumstances where there has been a breach of natural justice at
the RAD level. In this case the applicant failed to establish a breach of
natural justice in the RAD’s process and therefore, on either a reasonableness
or correctness standard of review, the RAD did not err in refusing to reopen
the applicant’s appeal.
III.
Issues
[15]
I have identified the following issues:
1)
What is the applicable standard of review when
considering a decision of the RAD not to reopen an appeal under RAD Rule 49?;
2)
Did the RAD err in dismissing the applicant’s
request to reopen the appeal?; and
3)
Were the RPD’s findings relevant to the RAD’s
decision?
IV.
Analysis
A.
What is the Standard of Review?
[16]
The applicant made no written submissions on
standard of review. However, in oral argument the applicant submitted the
correctness rather than the reasonableness standard of review applies to the
RAD’s decision because the RAD’s failure to consider the circumstances at the
RPD in the RAD’s determination of whether a breach of natural justice occurred
under sub-rule 49(6) of the RAD Rules constitutes a fettering of discretion.
[17]
The respondent, noting that there is no
jurisprudence from this Court establishing the appropriate standard of review
in the case of a decision by the RAD on an application to reopen an appeal,
submits that the reasonableness standard should be adopted.
[18]
The RAD Rules addressing an application to
reopen an appeal state the following:
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49. (1) At any
time before the Federal Court has made a final determination in respect of an
appeal that has been decided or declared abandoned, the appellant may make an
application to the Division to reopen the appeal.
(2) The
application must be made in accordance with rule 37. If a person who is the
subject of an appeal makes the application, they must provide to the Division
the original and a copy of the application and include in the application
their contact information and, if represented by counsel, their counsel’s
contact information and any limitations on counsel’s retainer
(3) The
Division must provide to the Minister, without delay, a copy of an
application made by a person who is the subject of an appeal.
(4) If it is alleged in the application that the person who is the
subject of the appeal’s counsel in the proceedings that are the subject of
the application provided inadequate representation,
(a) the person must first provide a copy of the application to the
counsel and then provide the original and a copy of the application to the
Division, and
(b) the application provided to the Division must be accompanied
by proof that a copy was provided to the counsel.
(5) The
application must be accompanied by a copy of any pending application for
leave to apply for judicial review or any pending application for judicial
review.
(6) The Division
must not allow the application unless it is established that there was a
failure to observe a principle of natural justice.
(7) In deciding the application, the Division must consider any
relevant factors, including
(a) whether the application was made in a timely manner and the
justification for any delay; and
(b) if the appellant did not make an application for leave to
apply for judicial review or an application for judicial review, the reasons
why an application was not made.
(8) If the
appellant made a previous application to reopen an appeal that was denied,
the Division must consider the reasons for the denial and must not allow the
subsequent application unless there are exceptional circumstances supported
by new evidence.
(9) If there is a pending application for leave to apply for
judicial review or a pending application for judicial review on the same or
similar grounds, the Division must, as soon as is practicable, allow the
application to reopen if it is necessary for the timely and efficient
processing of appeals, or dismiss the application.
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49. (1) À tout
moment avant que la Cour fédérale rende une décision en dernier ressort à
l’égard de l’appel qui a fait l’objet d’une décision ou dont le désistement a
été prononcé, l’appelant peut demander à la Section de rouvrir cet appel.
(2) La demande
est faite conformément à la règle 37. Si la demande est faite par la personne
en cause, celle-ci transmet à la Section l’original et une copie de la
demande et indique dans sa demande ses coordonnées et, si elle est
représentée par un conseil, les coordonnées de celui-ci et toute restriction
à son mandat.
(3) La Section transmet sans délai au ministre une copie de la
demande faite par la personne en cause.
(4) S’il est allégué dans sa demande que son conseil, dans les
procédures faisant l’objet de la demande, l’a représentée inadéquatement :
a) la personne en cause transmet une copie de la demande au
conseil, puis l’original et une copie à la Section;
b) la demande transmise à la Section est accompagnée d’une preuve
de la transmission d’une copie au conseil.
(5) La demande
est accompagnée d’une copie de toute demande d’autorisation de présenter une
demande de contrôle judiciaire en instance ou de toute demande de contrôle
judiciaire en instance.
(6) La Section
ne peut accueillir la demande que si un manquement à un principe de justice
naturelle est établi.
(7) Pour statuer sur la demande, la Section prend en considération
tout élément pertinent, notamment :
a) la question de savoir si la demande a été faite en temps
opportun et la justification de tout retard;
b) si l’appelant n’a pas présenté une demande d’autorisation de
présenter une demande de contrôle judiciaire ou une demande de contrôle
judiciaire, les raisons pour lesquelles il ne l’a pas fait.
(8) Si l’appelant a déjà présenté une demande de réouverture d’un
appel qui a été refusée, la Section prend en considération les motifs du
refus et ne peut accueillir la demande subséquente, sauf en cas de
circonstances exceptionnelles fondées sur l’existence de nouveaux éléments de
preuve.
(9) Si une demande d’autorisation de présenter une demande de
contrôle judiciaire en instance ou une demande de contrôle judiciaire en
instance est fondée sur des motifs identiques ou similaires, la Section, dès
que possible, soit accueille la demande de réouverture si cela est nécessaire
pour traiter avec célérité et efficacité les appels, soit rejette la demande.
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[19]
I agree with the respondent that while there is
no jurisprudence on the standard of review to be adopted when reviewing a
decision under RAD Rule 49, there is jurisprudence that addresses the question
where the Court is reviewing a reopening decision of the RPD made under Rule 62
of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules].
Sub-rule 62(6) of the RPD Rules contains an identical provision to sub-rule
49(6) of the RAD Rules.
[20]
Justice George Locke, in Djilal v Canada
(Minister of Citizenship and Immigration), 2014 FC 812 at paragraphs 5
through 7 addresses the standard of review to be applied under sub-rule 62(6)
of the RPD Rules. I am of the view that his analysis is relevant in determining
the standard of review that I adopt in considering the RAD’s decision in this
case:
[5] The applicants argue that,
because this application concerns a question of natural justice, the applicable
standard of review is correctness. The applicants rely on Emani v Canada
(Citizenship and Immigration), 2009 FC 520 at paragraph 14.
[6] However, the respondent maintains
that, in an application for judicial review of a decision by the RPD on an
application to reopen a refugee claim, the applicable standard of review is
reasonableness because it is a question of mixed fact and law. That is the case
even though the application for judicial review concerns a question of natural
justice. The respondent refers to the following decisions: Orozco v Canada
(Citizenship and Immigration), 2008 FC 270 at paragraphs 24 to 26; and Gurgus
v Canada (Citizenship and Immigration), 2014 FC 9 at paragraph 19.
[7] I am of the opinion that the
respondent is correct. Several other decisions on this subject are consistent
with the respondent's position. I will therefore apply the reasonableness
standard.
[21]
Further, the jurisprudence establishes that a
presumption of deference applies to questions pertaining to the interpretation
of a decision-maker’s home statute or statutes that are closely connected to
its function (Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association, [2011] 3 S.C.R. 654 at para 30; Smith v Alliance Pipeline
Ltd, [2011] 1 S.C.R. 160 at paragraph 26). The RAD Rules fall squarely within
the functions of the RAD and neither party suggested that the interpretation of
sub-rule 49(6) of the RAD Rules constitutes a question of general importance to
the legal system (Singh v Canada (Citizenship and Immigration, 2014 FC
1022 at paras 41-42 [Singh]). I therefore share Justice Locke’s view
from Djilal that notwithstanding the fact that the RAD Rules engage a
question of natural justice the reasonableness standard of review applies.
B.
Did the RAD err in dismissing the applicant’s
request to reopen the appeal?
[22]
I am of the view that the RAD did not err in
dismissing the applicant’s request to reopen the RAD’s decision.
[23]
Sub-rule 49(6) of the RAD Rules does not allow
the RAD to consider the reopening of an appeal except where a failure to
observe a principle of natural justice has been established. In this case the
applicant did not advance any argument that the RAD, in the conduct of its
procedures in relation to the applicant’s appeal, committed a breach of natural
justice. The RAD provided notice to the applicant of the RAD Rules relating to
the time for perfection of the appeal, the RAD did not proceed in a hasty
fashion to dismiss the application upon the expiry of the time to perfect the
appeal. The applicant acknowledges that she received the RPD’s reasons on June
30, 2014 and the RAD waited an additional 42 days after the expiry of the 30
day deadline on July 30, 2014 before dismissing the appeal on September 10,
2014.
[24]
Moreover, Rule 6 of the RAD Rules provides a
mechanism by which the applicant can seek an extension of time to perfect an
appeal, and Rule 29 provides that an applicant can bring an application to
submit further documents after an appeal has been perfected. As the RAD noted
in dismissing the appeal for a lack of perfection, the applicant never
attempted to seek an extension of time to perfect the appeal. Furthermore, in
dismissing the application to reopen it was reasonable for the RAD to reject
the applicant’s explanation set out in the above-referenced affidavit that she
was waiting for further evidence before filing an appeal record when she could
have perfected her appeal and subsequently make an application under Rule 29 to
submit further documents.
[25]
The applicant failed to demonstrate a breach of
natural justice arising out of the RAD appeal process.
[26]
Instead the applicant relies on an alleged
breach of natural justice in the proceedings before the RPD to establish the
condition precedent for the exercise of the RAD’s discretion to reopen the
appeal. The breach alleged is substantive in nature in that it alleges the RPD
erred by dismissing the application on the basis of identity without
considering the merits of the applicant’s refugee claim. The applicant argued
the RAD needed to take a broader view of natural justice by looking beyond its
own process and assess the fairness or lack thereof in the RPD’s process. In
oral submissions, the applicant was not able to identify any jurisprudence to
support the position that the RAD must consider natural justice breaches
arising outside its process when assessing whether or not a breach of natural
justice has occurred for the purposes of sub-rule 49(6) of the RAD Rules.
[27]
Although the respondent persuasively argued that
RAD Rule 49 only pertains to the RAD’s prior decision since that decision is
the subject of the application to reopen, I am not prepared to conclude that
there might not be a circumstance where a breach of natural justice in a prior
process or proceeding might be relevant in the context of RAD Rule 49 in light
of the RAD’s role as an appellate body in reviewing first level decisions (Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799 at paras
54-55, 30 Imm LR (4th) 115; Singh at paras 55, 57). However, this is not
such a circumstance. In this case the applicant is relying on a substantive
argument to be advanced on appeal not a breach of natural justice. As noted by
Justice Luc Martineau at paragraphs 6 through 8 of Ikuzwe v Canada (Minister
of Citizenship and Immigration), 2014 FC 875 in considering RPD Rule 62:
[6] Under subsection 62(6) of the
Rules and according to recognized case law, an application to reopen will only
be allowed if the original decision-maker breached a principle of natural
justice, i.e. in very limited circumstances (Seyoboka v Canada (Minister of
Citizenship and Immigration), 2010 FC 488 at para 24). Since December 2012,
the new subsection 62(7) of the Rules requires the Board to consider any
relevant factors, including the reasons why a party has not presented an
application for leave and judicial review.
[7] In his application to reopen, the
applicant complained of a breach of a principle of natural justice flowing from
a misapplication of law by the original decision-maker […] The applicant also
alleged that he suffered from paranoid schizophrenia that was not diagnosed at
the time of the original hearing and that the Board was not able to consider
this particular medical condition during the assessment of his credibility.
[8] No reviewable error was committed
by the Board. Must it be repeated that natural justice relates to the
procedural protections and do not cover the errors of law that could have been
committed by the original decision-maker [emphasis added].
[28]
Similarly in Brahim v Canada (Minister of
Citizenship and Immigration), 2014 FC 735 at paras 7-8, Justice Shore held:
[7] [T]he applicants filed an
application for judicial review. They also submitted an application to reopen
to the RPD, which was refused on January 28, 2014. The applicants are now
asking the Court to intervene in the latter decision on the following grounds:
a) The RPD violated their right to a hearing
in the official language of their choice;
b) The RPD failed to consider all of the
evidence in the record;
c) The RPD erred in the manner in which it
assessed the prospective risk faced by the applicants.
IV. Analysis
[8] In the respondent’s view, the
last two questions are not relevant to this case, as they bear no relation to
any breach of the principles of natural justice. The Court shares this view.
These allegations have nothing to do with natural justice; rather, they relate
to the reasonableness of the decision. The applicants are essentially
attempting to make the same arguments as those submitted in IMM-7118-13 (2014
FC 734) before this Court. In short, the applicants disagree with the manner in
which the RPD considered the evidence and the way it reviewed their refugee
protection claim. The Court cannot intervene on either of these grounds in this
case. Section 62 of the Refugee Protection Division Rules, SOR/2012-256,
clearly states that the RPD cannot reopen a refugee claim unless it has been
established that there was a failure to observe a principle of natural justice
(Lakhani v Canada (Minister of Citizenship and Immigration), 2006 FC
612; Ali v Canada (Minister of Citizenship and Immigration), 2004 FC
1153, 228 FTR 226).
[29]
The same reasoning applies here; the applicant
takes issue with the reasonableness of the RPD’s decision in dismissing her
claim on the basis of her failure to establish her identity, not a breach of
natural justice.
[30]
I am therefore satisfied that the RAD did not
err in dismissing the applicant’s request.
C.
Were the RPD’s findings relevant to the RAD’s
decision?
[31]
For the reasons set out above I am of the view,
on the facts before me in this case, that the RPD’s substantive findings were
of no relevance to the RAD’s dismissal of the application to reopen the appeal.
V.
Conclusion
[32]
The application for judicial review is
dismissed. The parties did not identify a question of general importance.
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