Docket: IMM-2920-15
Citation:
2016 FC 388
Vancouver, British Columbia, April 7, 2016
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
DOROTHY ANJIEH
KETCHEN
|
|
Applicant
|
|
and
|
|
MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a decision [the Decision] by the Refugee Appeal Division
[the RAD] confirming a decision by the Refugee Protection Division [the RPD]
that the Applicant is neither a Convention refugee, nor a person in need of
protection. The Decision is dated June 10, 2015. The Applicant asks that the
Decision be returned due to reviewable errors in the admission of evidence, in
the conclusions reached, and in a failure to convoke an oral hearing.
[2]
After considering the issues, I find the
decision reasonable on all fronts and thus I am unable to grant judicial
review, despite the best efforts of counsel to persuade the Court otherwise.
II.
Background
[3]
The Applicant, Dorothy Anjieh Ketchen, is a
citizen of Cameroon. She alleges that she was a member of the Southern
Cameroons National Council [the SCNC], a political movement that advocates
regional separation from the rest of the country. On September 30, 2011, as a
result of her political opinion, she alleges that she was arrested by the
police, detained for over a week, raped, beaten, and mistreated.
[4]
On October 1, 2013, she alleges that the police
broke into her apartment while she was not home. She then went into hiding in a
small village named Yoke. While in hiding, an agent arranged a visa for her to
travel to Canada. In that visa application, she submitted a picture of herself
with her alleged husband. At the RPD hearing, however, she admitted that she
did not know the man in the picture and that the agent was responsible for the
contents of the application.
[5]
She arrived in Canada on May 13, 2014 and
claimed refugee status the next day.
[6]
On August 8, 2014, the RPD dismissed her claim.
The RPD found that the Applicant’s testimony was vague and inconsistent and
that there was insufficient credible evidence to conclude that she was a member
of the SCNC, that she had been detained, or that she was being pursued by the
authorities.
III.
Decision Under Review
[7]
The RAD first noted that the Applicant had made
evidence available to the RAD that she had not submitted to the RPD. That
evidence fell into two categories: (i) medical evidence and (ii) spousal
evidence. Evidence from the first category related to information about the
alleged 2011 attacks, including a hospital report and photos. Evidence from the
second category came in the form of a 2015 Affidavit from the alleged
common-law spouse, including a warrant and a recognizance.
[8]
The RAD noted that all of these documents had
been submitted two months after her appeal to the RAD was perfected as part of
an “Application to File Documents or Written
Submissions not previously provided” under Rule 37 of the Refugee
Appeal Division Rules, SOR/2012-257 [the RAD Rules]. The RAD thus turned to
subsection 110(4) of the Act to determine whether that evidence could be
considered:
110. (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.
[9]
The RAD also noted Rule 29 the RAD Rules, which
outlines procedure for late documentary evidence:
29. (1) A person who is the subject of an
appeal who does not provide a document or written submissions with the
appellant’s record, respondent’s record or reply record must not use the
document or provide the written submissions in the appeal unless allowed to do
so by the Division.
(2) If a person who is the subject of an
appeal wants to use a document or provide written submissions that were not
previously provided, the person must make an application to the Division in
accordance with rule 37.
(3) The person who is the subject of the
appeal must include in an application to use a document that was not previously
provided an explanation of how the document meets the requirements of
subsection 110(4) of the Act and how that evidence relates to the person,
unless the document is being presented in response to evidence presented by the
Minister.
(4) In deciding whether to allow an
application, the Division must consider any relevant factors, including
(a) the document’s relevance and probative
value;
(b) any new evidence the document brings to
the appeal; and
(c) whether the person who is the subject of
the appeal, with reasonable effort, could have provided the document or written
submissions with the appellant’s record, respondent’s record or reply record.
[10]
The RAD then assessed each of the pieces of this
late evidence. The RAD found first that the Applicant had not provided a
sufficient explanation as to why the medical evidence had not been submitted in
a timely manner, since the alleged attack occurred in 2011 and the RPD had
specifically raised an absence of medical records as an issue and even provided
the Applicant a three-week post-hearing window to submit them. As a result, the
RAD determined that these documents did not meet the requirements of Rule 29(3)
and refused to admit them into evidence.
[11]
As for the second set of evidence – the
common-law spouse’s Affidavit and associated documents – the RAD noted that
despite the fact that he was apparently released from detention more than four
months before the Applicant perfected her appeal, no explanation was given as
to why this evidence was submitted late. Nonetheless, the RAD chose to accept
it.
[12]
The RAD then stated that, as per Huruglica v
Canada (Citizenship and Immigration), 2014 FC 799 at para 54 [Huruglica
FC], it would conduct a hybrid appeal of the RPD decision, conducting an
independent assessment of the claim and deferring only where the RPD has a
clear advantage in reaching a conclusion (i.e. on issues of credibility).
[13]
Overall, the RAD agreed with the RPD that the
Applicant’s testimony was inconsistent, inarticulate, and often “reactive and manufactured”.
[14]
On the question of SCNC membership, the RAD
found her testimony contradictory and the evidence insufficient. Her story on
joining had changed over time, her membership card appeared new, rather than
appropriately aged, and the RAD did not believe that the police would have
returned it to her after her detention in 2011. The RAD also found that the
Applicant’s allegation that she occupied a leadership role in the SCNC was not
credible. She was unable at the RPD hearing to outline the principles or
leadership structure of the SCNC and unable to provide detail about what it
meant to be a member of the SCNC or what she did for them after her 2011
detention. The RAD concluded on a balance of probabilities that she was not a
member of the SCNC.
[15]
The RAD then considered the 2011 detention. The
RPD drew a negative inference from the fact that the Applicant provided no
detail of her detention on her Basis of Claim form [BOC] and later contradicted
her BOC in her oral testimony. The Applicant argued that this was because she
lacked proper counsel when she filed the BOC and so did not know what to
include. The RAD, however, found that she is well-educated, trained as a
lawyer, that her first language is English, and that the instructions on the
BOC were clear that more detail was required. The RAD found, for example, that
she alleged she had been hospitalized after the 2011 detention for two weeks, a
major incident that should reasonably have been included on her BOC. The RAD
concluded that she had not demonstrated on a balance of probabilities that she
had been detained and hospitalized as a result.
[16]
The RAD also determined that the Applicant’s
submissions on her relationship with her common-law spouse, along with his
employment and his role in the SCNC, were vague, inconsistent, and that it was
not clear where she lived in Cameroon and when. The RAD noted the new evidence
provided – including the recognizance of surety and the warrant – but gave
these materials little value, however, because of the Applicant’s impugned
credibility and because of documentary evidence noting the problem of
fraudulent documents in Cameroon.
[17]
Finally, the RAD agreed with the RPD that the
Applicant’s submissions on the 2013 incident and her decision to go into hiding
were problematic. Again, the BOC lacked detail on these points and the RAD drew
a negative inference from the discrepancy between that detail and the detail
provided at the oral hearing. The RAD also noted that the Applicant was
hesitant in describing why she selected Yoke and why she failed to list her
address in Yoke on her BOC. The RAD found, ultimately, that the Applicant did
not go into hiding in Yoke in 2013 for seven months. It further noted the
implausibility created by her account of applying for a national identity card
at a police station when she was in hiding from the police, who were allegedly
searching for her.
[18]
The RAD concluded by noting that the Applicant
had not provided sufficient credible evidence to demonstrate that she was a
victim of persecution in Cameroon and by confirming the RPD’s negative
determination.
IV.
Analysis
[19]
The Applicant argues in her pleadings that the
RAD made reviewable errors in rejecting the new hospital evidence, in applying
the wrong standard of review to the RPD decision, and in failing to convoke an
oral hearing.
[20]
In terms of the standard of review for questions
about the admissibility of evidence, the RAD’s interpretation of subsection
110(4) and its application to the facts of a given case are reviewable on a
reasonableness standard (Canada (Citizenship and Immigration) v Singh,
2016 FCA 96 at para 29 [Singh FCA]). Similarly, the second error,
regarding the decision itself as it relates to the determination and
application of a standard of review, also attracts a reasonable standard (Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 35 [Huruglica
FCA]), as does the third error, which involves the application of
subsection 110(6) to the facts (Tchangoue v Canada (Citizenship and
Immigration), 2016 FC 334 at para 12; Sanmugalingam v Canada
(Citizenship and Immigration), 2016 FC 200 at para 36). It is trite
law that the Court must therefore take a deferential
approach and resist imposing its own analysis: if the decision is an acceptable
and rational solution that is justifiable, transparent and intelligible,
it should not be disturbed (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
A.
Did the RAD err in rejecting the new evidence?
[21]
According to the Applicant, the RAD erred in law
in ignoring the evidence before it since that evidence met the requirements of
subsection 110(4) of the Act. The Applicant argues that the new evidence, had
it been accepted, would have clearly rebutted the central findings of the RPD
and would have confirmed the risk of persecution in Cameroon.
[22]
The Applicant relies on Singh v Canada
(Citizenship and Immigration), 2014 FC 1022 [Singh FC], where
the judge compared subsection 110(4) and paragraph 113(a) of the Act. She
concluded that paragraph 113(a) and the jurisprudence that relates to it –
specifically Raza v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza]
– should not apply to subsection 110(4). Ultimately, according to the judge,
when assessing whether new evidence should be admitted, “the RAD should provide some leeway to appellants in order to
allow them to respond to evidentiary weaknesses that the RPD may have found in
the record” (Singh FC at paras 55).
[23]
I should note that, between the time of the
hearing before this Court and the time of this decision, the Federal Court of
Appeal released Singh FCA, which overturned Singh FC on the
ground of the applicability of Raza and found that “[e]xcept for the materiality of evidence, which does not
lend itself to the same analysis in an appeal and which subsection 110(6)
already considers in determining whether a new hearing should be held, it is
not necessary to interpret subsection 110(4) and paragraph 113(a) differently”
(para 64). There, Mr. Singh had failed before the RPD to establish his identity
because he had not submitted his grade 12 diploma – which had been seized by
Canadian immigration authorities and was thus not in his possession. The RAD
determined that the fault lay not with Mr. Singh, but rather with his lawyer,
and thus refused to admit the diploma into evidence. The Federal Court of
Appeal concluded that this was a reasonable application of the subsection
110(4) requirements and that “there are very good reasons
why Parliament would favour a restrictive approach to the admissibility of new
evidence on appeal” (Singh FCA at para 49).
[24]
Even in the absence of the Federal Court of
Appeal’s recent decision in Singh FCA, it would be difficult to find the
RAD’s application of subsection 110(4) in this case unreasonable. Ms.
Ketchen has provided no explanation for why the medical documents were not
submitted in a timely fashion. She simply stated that “she
could not lay her hands on the [hospital] report” until after the RPD
hearing. This Court’s position before Singh FCA was released was that
the Applicant’s delay was not reasonable – contrary to what subsection 110(4)
and Rule 29 require – and Singh FCA affirms this conclusion. The RAD’s
exclusion of the newly presented medical evidence was thus entirely acceptable.
[25]
Furthermore, the RAD actually accepted a
substantial portion of the evidence (from the fiancé), even thought that
evidence did not strictly meet the requirements of Rule 29. This evidence was
admitted, considered, weighed, and ultimately given low probative weight, which
was entirely open to the tribunal given the full context, including the
foundation upon which the negative credibility assessment was based.
B.
Did the RAD err in applying the wrong standard
of review to the RPD’s decision?
[26]
The Applicant argues that the RAD erred in
deferring to the RPD’s findings on her SCNC membership and thus failing to
conduct the independent assessment required of it under Huruglica FC.
[27]
The Respondent, by contrast, argues that the RAD
was explicit that it conducted an independent assessment and considered the
totality of the evidence. The Decision was lengthy, detailed, and thorough on
this point. It identified multiple problems with the Applicant’s claim,
including discrepancies around the Applicant’s membership in and knowledge of
the SCNC and the Applicant’s relationship with her alleged common-law spouse.
[28]
As with Singh FC and Singh FCA,
the Federal Court has recently provided clarification on this point. The RAD
relied, in conducting its analysis, on the directions of Justice Phelan in Huruglica
FC. Those directions have since been supplanted by the Federal Court of
Appeal in Huruglica FCA. There, Justice Gauthier clarified that the RAD
must review RPD decisions on a correctness standard, carefully considering the
RPD decision before carrying out “its own analysis of
the record to determine whether, as submitted by the appellant, the RPD erred”
(Huruglica FCA at para 103).
[29]
The Federal Court of Appeal has also clarified that
this Court must review the RAD’s selection of a standard of review on a
reasonableness standard (Huruglica FCA at para 35). With that in mind, I
find that the RAD conducted for Ms. Ketchen, in substance, precisely the kind
of thorough review that Justice Gauthier has endorsed in Huruglica FCA –
including listening to the complete hearing, reviewing all the exhibits, and
rendering a comprehensive judgment dealing with all aspects of the RPD
findings.
[30]
I also agree with the Respondent that the
Applicant has failed to identify a reviewable error and is, in essence, asking
that this Court simply reweigh the evidence. The RAD’s analysis of numerous
points of concern was both detailed and cogent. It was clearly engaged in a
correctness analysis throughout the Decision, as prescribed by Huruglica FCA,
and its conclusions on credibility were well documented and justified – the
Applicant’s failure to answer basic questions that she should have known as a
purported insider of the SCNC were all transparently and intelligibly detailed
in the RAD’s comprehensive reasons.
C.
Should there have been an oral hearing?
[31]
The Applicant raised this issue for the first
time in this judicial review at the hearing. I allowed oral submissions on it
only because there was a brief mention of it in the application to the RAD,
although nothing was said about it in the representations made to the RAD.
[32]
Counsel for the Respondent very ably provided
impromptu submissions on this question and I agree entirely with his position,
set out with reference to subsections 110(3) and (6):
(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.
…
(6) The Refugee Appeal Division may
hold a hearing if, in its opinion, there is documentary evidence referred to in
subsection (3)
(a) that raises a serious issue with
respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision
with respect to the refugee protection claim; and
(c) that, if accepted, would justify
allowing or rejecting the refugee protection claim.
[33]
The presumption, according to this regime, is
that there will be no oral hearing unless all three criteria under the
tripartite test in subsection 110(6) are met as well as the conditions under
subsection 110(4) (see Singh FCA at para 51:
“[t]he new evidence must meet the admissibility criteria set out in subsection
110(4), and a new hearing can be held only if the new evidence fulfils the
conditions set out in subsection 110(6)”). However, as explained above,
there was no compelling new evidence before the RAD that would meet these
criteria. The medical evidence was not admitted and thus is not a consideration
under this provision. The only basis for an oral hearing could result from the
evidence tendered by the fiancé, and I have already found that the Board was justified
in according it low weight, which suggests it could not meet the materiality
requirements of subsection 110(6). I find that the RAD’s decision to proceed in
writing was reasonable.
V.
Conclusion
[34]
In light of the above, this application for
judicial review is dismissed. There are neither any questions certified, nor
any costs awarded.
Email this Content