Docket: IMM-1487-16
Citation:
2016 FC 1028
Ottawa, Ontario, September 9, 2016
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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LEONARD AHI
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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
Reasons
delivered orally in Ottawa on September 8, 2016
[1]
Leonard Ahi sought refugee protection in Canada
claiming to be at risk in Albania because of a blood feud involving members of
his extended family. The Refugee Protection Division of the Immigration and
Refugee Board rejected Mr. Ahi’s claim, finding his story to be thoroughly
lacking in credibility.
[2]
Mr. Ahi appealed the RPD’s decision to the
Refugee Appeal Division of the Immigration and Refugee Board. After reviewing
the documentary record and listening to the tape recording of the RPD hearing,
the RAD dismissed Mr. Ahi’s appeal.
[3]
Mr. Ahi argues that the RAD erred by
deferring to the RPD’s factual and credibility findings rather than carrying
out its own independent review of the evidence as required by the Federal Court
of Appeal’s decision in Huruglica v. Canada (Minister of Citizenship and
Immigration), 2016 FCA 93, [2016] F.C.J. No. 313, which was released two
weeks after the RAD made its decision in this case.
[4]
As this Court has noted, and the parties have
agreed, the fact that a RAD decision pre‑dates the Federal Court of
Appeal’s decision in Huruglica does not automatically invalidate a RAD
decision. The question that has to be determined on a case-by-case basis is
whether the RAD subjected the RPD’s decision to the sort of probing examination
prescribed by the Federal Court of Appeal in Huruglica, or whether it deferred
to the RPD’s findings: Ketchen v. Canada (Minister of Citizenship and
Immigration), 2016 FC 388, at para. 28.
[5]
In support of his claim that the RAD showed
inappropriate deference to the RPD, Mr. Ahi points to the statement at
paragraph 12 of the RAD’s decision where the presiding member stated that,
following the Court’s decision in Huruglica, “I
must show a degree of deference to the RPD with respect to its credibility assessment”.
[6]
While it is true that the RAD did not have the
benefit of the Federal Court of Appeal’s decision in Huruglica when it
made the decision under review, a review of the RAD’s decision in this case
confirms that the RAD did in fact carry out its own independent assessment of
the evidence, coming to its own conclusions on the basis of that evidence.
[7]
Indeed, right after the RAD made its statement quoted
earlier, the RAD went on in paragraph 12 of its reasons to state that “I must provide my own assessment of the evidence to reach my
own conclusion on this appeal”.
[8]
Having carefully reviewed the RAD’s decision, this
is in my view, exactly what the RAD did.
[9]
For example, the RAD considered the evolving
nature of Mr. Ahi’s evidence as to which family member had returned to
Albania in 2014, after the alleged death of several family members. The RAD
quite reasonably determined that the inconsistencies in Mr. Ahi’s evidence
on this point raised a major problem with his credibility, explaining at
paragraph 19 of its reasons why this is the case.
[10]
I do not agree with Mr. Ahi that the
inconsistencies in his evidence on this point were either “trivial” or “immaterial”,
as this evidence related directly to the risk allegedly faced by Mr. Ahi and
the members of his extended family in Albania.
[11]
The RPD also found that Mr. Ahi’s evidence
as to why he waited four years to leave Albania after two of his cousins were
killed in 2011 was “vague and hesitant”. The RAD
listened to the tape recording of Mr. Ahi’s RPD hearing and made its own
independent evaluation of Mr. Ahi’s testimony on this point. The fact that
the RAD came to the same conclusion as did the RPD on this issue, after
listening to the testimony, does not mean that the RAD deferred to the RPD on
this point.
[12]
The RAD was moreover alive to the problems that
can arise in making credibility assessments based on the demeanour of
witnesses. The RAD noted at paragraph 15 of its reasons that “the demeanour of a witness cannot be given much if any
weight in coming to a credibility determination”.
[13]
It is true that the RAD did at some points show
a degree of deference to the RPD’s findings. For example, at paragraph 29 of
its reasons, the RAD noted that the RPD was better positioned than was the RAD
to determine whether Mr. Ahi was present at an event recorded on video,
given that Mr. Ahi was physically present before the RPD, but not before the
RAD. This is not an error, however, as the Federal Court of Appeal specifically
noted at paragraph 70 of Huruglica that there may be situations where
the RPD enjoys an advantage over the RAD in assessing evidence. This was
precisely that sort of situation.
[14]
Finally, given the problems with Mr. Ahi’s
testimony and the ready availability of forged documents in Albania, it was
reasonable for the RAD to discount the documentary evidence produced by Mr. Ahi.
The RAD also noted inconsistencies in dates referenced in some of the documents
produced by Mr. Ahi, providing a further basis for discounting the
probative value of the documents in question.
[15]
Mr. Ahi has subjected that the RAD’s
decision to the sort of microscopic analysis that has been rejected by the
Supreme Court of Canada in cases such as Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, and Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[16]
Reading the RAD’s decision as a whole, as I am
required to do, I am satisfied that the RAD properly carried out the mandate entrusted
to it by Parliament, as described by the Federal Court of Appeal in Huruglica.
[17]
I am further satisfied that the RAD’s reasons
are transparent, intelligible and justified, and that the outcome of the appeal
was one that was well within the range of possible, acceptable, outcomes which
are defensible in light of the facts and the law: Dunsmuir, above at
para. 47. In other words, it was reasonable.
[18]
Consequently, Mr. Ahi’s application for
judicial review is dismissed. I agree with the parties that this case turns on
its own facts, and does not raise a question that is suitable for
certification.
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