Docket: IMM-4061-15
Citation:
2016 FC 654
Ottawa, Ontario, June 13, 2016
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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ISABEL ANGWI
ANGWAH
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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
I.
Introduction
[1]
Ms. Isabel Angwi Angwah [Ms. Angwah] seeks
judicial review of a decision of the Refugee Appeal Division [RAD] dated August
21, 2015, in which the RAD dismissed the appeal and confirmed the determination
of the Refugee Protection Division [RPD] that Ms. Angwah is neither a
Convention refugee nor a person in need of protection, pursuant to ss 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
For the reasons that follow, I would allow the application for judicial review.
II.
Background
[2]
Ms. Angwah is a 23-year-old citizen of Cameroon.
She testified that when she began her university studies in 2009 in Cameroon
she started a relationship with Harry Tatsa [Mr. Tatsa]. They resided together
in the city of Bamenda, where Ms. Angwah’s family members also reside. After
she became pregnant in December 2012, Ms. Angwah claims Mr. Tatsa became
verbally and physically abusive toward her. In March 2013, Mr. Tatsa returned
home intoxicated and allegedly assaulted Ms. Angwah and pushed her down the
stairs. She claims to have suffered a miscarriage as a result. She sought help
from a neighbour who took her to the hospital where she remained for one week.
Ms. Angwah reported the incident to the police who advised her to return to her
partner and resolve the matter privately. Ms. Angwah also testified that her
parents spoke to Mr. Tatsa about his conduct but to no avail. In fact, he
warned them not to interfere in his private family matters.
[3]
Several months later, Ms. Angwah returned to
live with Mr. Tatsa. She claims that the abusive behaviour continued and that
she sought assistance from family and friends. Ms. Angwah says that when Mr.
Tatsa learned she had spoken to a friend about his behaviour, he beat her (Ms.
Angwah), threatened her life and poisoned her dog. Ms. Angwah testified that in
July 2014, Mr. Tatsa locked her in their home for three days. She was able to
escape and hid at her friend’s home. She again reported Mr. Tatsa to the
police. Once again, the police refused to intervene. Upon her friend’s advice,
Ms. Angwah applied and was accepted as a student at Centennial College in
Canada. She arrived in Canada on December 13, 2014, and made a refugee claim on
February 5, 2015.
[4]
In a decision dated May 6, 2015, the RPD
rejected Ms. Angwah’s refugee claim. The RPD found that the determinative issue
was credibility. The RPD concluded there were contradictions between her oral
testimony, the statements in her Basis of Claim form and the evidence she
submitted. The RPD found her explanations for those contradictions to be vague
and evasive. As a result, it concluded the whole of her testimony lacked
credibility.
III.
Impugned Decision
[5]
Ms. Angwah appealed the RPD decision to the RAD.
She contended that the RPD's credibility findings were based on a misapprehension
of the evidence. In accordance with the requirements of s 110(4) of the Act,
she submitted the following proposed new evidence on the issue of credibility:
(1) affidavits from her sister and her mother; (2) a police report; (3) a copy
of the National Identity Card of Mr. Tatsa; (4) an email message to which was
attached three photographs; and (5) an envelope mailed in Cameroon. The RAD
upheld the rejection of Ms. Angwah's refugee claim, but for different reasons.
The RAD concluded Ms. Angwah had an accessible and viable Internal Flight
Alternative [IFA] in Yaoundé, Cameroon. The RAD concluded it could decide Ms.
Angwah's refugee claim uniquely on the IFA issue. In coming to that
determination, it relied in part upon the new evidence that Ms. Angwah had
submitted. The RAD determined that pursuant to its statutory authority to
confirm or substitute a decision of the RPD pursuant to s 111(1)(a) and (b) of
the Act, it can confirm the determination of the RPD on alternative grounds.
[6]
After a review of the record, including the
transcription and the audio recording of the hearing before the RPD, the RAD
concluded that the RPD had “fully canvassed” the
possibility of an IFA in Yaoundé, Cameroon, but it (the RPD) made no findings
in that regard. The RAD observed that Ms. Angwah had the opportunity to make
oral submissions to the RPD regarding the IFA. The RAD invited counsel for Ms.
Angwah to provide additional written submissions on the issue of the IFA.
Counsel provided additional submissions in August, 2015.
[7]
The RAD concluded it was unnecessary to
determine whether the RPD had made a reviewable error with respect to its
credibility findings. Although the RAD noted it did not rely upon the RPD's
credibility findings in making a determination on the viability of an IFA, the
RAD was silent on the issue of credibility. The RAD further found that the
application of a standard of review was not necessary in this case since it was
conducting its own assessment of the viability of an IFA. In its analysis at
paragraphs 23 and 24, the RAD applied the two-pronged test found in the cases
of Rasaratnam v Canada (Minister of Employment and Immigration), [1992]
1 FC 706 and Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FC 589, [1993] FCJ No 1172 [Thirunavukkarasu]:
[23] Firstly, the Board must be satisfied,
on a balance of probabilities, that there is no serious possibility of the
claimant being persecuted in the part of the country to which it finds an IFA
exists.
[24] Secondly, conditions in the part of the
country considered to be an IFA must be such that it would not be unreasonable,
in all circumstances, including those particular to the claimant, for him or
her to seek refugee there.
[8]
In its assessment, the RAD expressed sensitivity
for the position of women in such circumstances and took into consideration Ms.
Angwah’s ability to travel safely to the IFA and to stay there without facing
undue hardship. The RAD also took into consideration religious, economic and
cultural factors.
[9]
Based upon its assessment of the evidence, which
included, as will be seen below, some of the new evidence offered by Ms. Angwah
on the credibility issue, the RAD concluded Ms. Angwah does not face a
personalized risk to her life, or cruel and unusual treatment or punishment, as
contemplated by s 97(1) of the Act, in the event she returns to Yaoundé,
Cameroon.
IV.
Issues
[10]
Counsel for Ms. Angwah contends the RAD: (1)
erred in deciding the appeal on grounds other than those considered in the RPD
decision and raised on appeal, namely the credibility findings; (2) erred in
its determination that a standard of review analysis was unnecessary; and (3)
made an unreasonable determination on the issue of a viable IFA.
V.
Standards of Review
[11]
I am of the view the question of whether the RAD
may decide the issue on a ground other than that which was decided by the RPD
must be decided on the standard of reasonableness. I say this because the
determination of whether the Act and jurisprudence permits such an approach
constitutes a legal question wholly within the jurisdiction of the RAD and is
not one that is of general application (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship
and Immigration) v Huruglica, 2016 FCA 93; [2016] FCJ No 313 at paras 30-35
[Huruglica]). Although I consider the standard of review to be
reasonableness on whether the RAD may decide the matter on an issue not raised
by the parties, the RAD's approach to determining the issue will inevitably
involve questions about whether all parties had an opportunity to address the
new issue raised, hence, a matter of procedural fairness which attracts, for
that part of the analysis, the standard of correctness: Ojarikre v Canada
(Minister of Citizenship and Immigration), 2015 FC 896, [2015] FCJ No 909
at para 13 [Ojarikre]; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43.
[12]
In applying the reasonableness standard, this
Court will only intervene if the RAD’s decision is not justified, transparent
and intelligible, or if it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above at para 47). When applying the correctness
standard, this Court will not show deference to the RAD’s reasoning process,
but will rather undertake its own analysis of the question (Dunsmuir,
above at para 50).
VI.
Relevant Provisions
[13]
Subsections 111(1)(a) and (b) of the Act enable
the RAD to confirm the RPD decision or to substitute its own determination (see
Appendix ‘A’).
VII.
Analysis
[14]
Counsel for Ms. Angwah relies on Jianzhu v
Canada (Minister of Citizenship and Immigration), 2015 FC 551, [2015] FCJ
No 527 and Ojarikre, above, to contend the RAD did not have the
jurisdiction to decide Ms. Angwah's refugee claim on the issue of the IFA,
since the RPD had not determined the matter and it was not raised on appeal.
[15]
The Minister contends the Ojarikre case
relied upon by Ms. Angwah, although factually similar, does not apply. I agree.
Ojarikre establishes that when the RAD chooses to raise new issues, it
must do so by inviting the parties to make submissions on those issues. An
appellate court may raise new issues, provided it is clothed with jurisdiction
to decide those matters, notifies the parties, and gives them an opportunity to
present submissions on the new issue (R v Mian, 2014 SCC 54, [2014] 2
SCR 689; Ojarikre, above at para 10). While neither party raised the
issue of the IFA before the RAD, upon a plain reading of the legislation and
jurisprudence, I am of the view the RAD is clothed with jurisdiction to decide
such an issue.
[16]
However, in making its decision on the IFA, I am
of the view that the RAD’s decision is neither transparent nor intelligible. I
reach this conclusion for three reasons. First, I note that when the RAD
confirms the decision of the RPD on another basis, it must do so after it
determines the existence of an error in the RPD decision (Huruglica,
above at paras 78, 103). Here, the RAD did not conclude the RPD had made any such
error. It could have clearly stated the RPD made an error on credibility or
erred in failing to conclude an IFA exists on the facts before it (RPD). It did
neither.
[17]
Second, for purpose of its analysis, the RAD
presumed Ms. Angwah’s truthfulness with respect to the IFA. However, the RAD
did not clearly and plainly state it had disabused itself of the RPD’s
credibility finding. That credibility finding deserved some attention before
the RAD carried out its own analysis on the IFA. I fail to understand how the
RAD can presume truthfulness in the face of an unresolved negative credibility
finding.
[18]
Third, the RAD held that it could determine the
IFA issue because the matter was “fully canvassed”
before the RPD. However, on its path to finding an IFA the RAD considered new
evidence in the form of affidavits from Ms. Angwah’s mother and sister, and a
police report dated June 4, 2015 regarding an assault allegedly committed by
Mr. Tatsa on Ms. Angwah’s sister. Because the RAD accepted written submissions
and considered evidence which were not before the RPD for purposes of making
its IFA determination, I fail to see how the RAD could conclude the IFA issue
was “fully canvassed” by the RPD. As such, the
RAD’s conclusion is tainted by an internal contradiction. While this internal
contradiction might be overlooked based upon the principles set out in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, I am of the view these concerns cannot be
remedied upon a review of the whole record, including the observations made in
paragraphs 16 and 17, above.
VIII.
Conclusion
[19]
In summary, I am of the view that in the
circumstances of this case, the RAD’s: (1) failure to find the RPD had erred;
(2) presumption of truthfulness in the face of an unresolved negative
credibility finding; and (3) internal contradiction in its decision, result in
a decision that is neither transparent nor intelligible. Given all of the
above, I need not consider the second ground of judicial review advanced by Ms.
Angwah. The decision does not meet the test of reasonableness as set out in Dunsmuir.
I would therefore allow the application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is allowed.
2.
The matter is remitted to another panel of the
RAD for redetermination.
3.
There will be no order of costs.
4.
There is no question certified.
“B. Richard Bell”
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