Docket: IMM-4447-15
Citation:
2016 FC 698
Toronto, Ontario, June 21, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
SHERIKA COLEENA
GREEN
CASEY LANAE
BRYAN
(A Minor by her Litigation Guardian, Sherika
Coleena Green)
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Background
[1]
This application, brought pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], seeks to set aside the September 9, 2015 decision of the Refugee Appeal
Division [RAD] of the Immigration and Refugee Board of Canada [IRB], dismissing
the applicants’ appeal from the Refugee Protection Division [RPD] of the IRB.
The RAD rejected the applicants’ refugee claim after finding they were neither
Convention refugees nor persons in need of protection pursuant to sections 96
and 97 of the IRPA respectively.
[2]
The RAD decision is a redetermination. The
initial negative RAD decision was returned for reconsideration by Justice
Catherine Kane in Green v Canada (Minister of Citizenship and Immigration),
2015 FC 536 [Green]. I am of the view that the RAD has again failed to
address the issue of credibility in the conduct of its state protection
analysis. This application is granted and the matter returned for a second
reconsideration for the reasons that follow.
A.
Facts
[3]
The applicants are Sherika Coleena Green
[Principal Applicant or PA] and her 6 year old daughter Casey Lanae Bryan. The
applicants are both citizens of Jamaica.
[4]
The applicants claimed refugee protection in
this country on the basis of the PA’s stated fear of domestic violence. The
applicants fear the PA’s former boyfriend and Casey’s father, Hannif Bryan. The
applicants state that the PA’s relationship with Mr. Bryan began in April of
2007, however he became abusive with the threats and harassment escalating
after the PA became pregnant with Casey.
[5]
In October of 2009, the PA states she was choked
by Mr. Bryan. The PA reports that this was the last time the applicants had
direct contact with Mr. Bryan, however he continued to try to contact both the
PA and the PA’s mother via text and email. On two occasions he attempted to
abduct Casey from her daycare centre, and on two separate occasions unknown
assailants attacked the PA with a knife.
[6]
The applicants left Jamaica for Canada in
December, 2012 and claimed refugee protection in April, 2013.
B.
Previous Decisions
(1)
RPD Decision
[7]
The RPD rejected the applicants’ refugee claim,
finding that the determinative issue was the availability of adequate state
protection and concluding on a balance of probabilities that the PA did not
rebut the presumption that adequate state protection is available to the
applicants in Jamaica.
[8]
The RPD found the PA was not a completely
credible witness, noting embellishment by the PA when addressing what she
feared Mr. Bryan would do to Casey. The RPD found the PA’s answers in this
regard were not direct and that she had not testified in a straightforward and
spontaneous manner on this issue. The PA explained that this occurred due to
her nerves, an explanation the RPD rejected. The RPD however did not disbelieve
the PA’s allegations as they related to domestic abuse at the hands of Mr.
Bryan.
[9]
Based on the RPD’s credibility finding above, the RPD did not accept that the PA reported to the police on five or
six occasions as she testified but rather that she had only reported to the
police once, a visit that was corroborated by a police report [Police Report].
The RPD also rejected the PA’s assertion, again based on the prior credibility
finding, that the information in the Police Report evidencing that one visit
was not accurate in that she had never been advised to visit the Court office
to seek a threat summons against Mr. Bryan as indicated in the Police Report.
(2)
First RAD Decision
[10]
The RAD dismissed the applicants’ appeal notwithstanding
that the RAD found errors in the RPD’s credibility assessment [First RAD
Decision].
[11]
The RAD found the RPD’s conclusion that the PA
lacked credibility did not have sufficient support in the evidence.
Furthermore, the RAD found that in light of the RPD’s finding that the PA was a
victim of domestic violence the RPD had failed to adequately consider the
Gender Guidelines. Despite this, the RAD determined it was reasonable for the
RPD to find that the PA did not rebut the presumption of state protection. In
support of this conclusion the RAD noted that the RPD considered the PA’s
situation and that the PA approached the authorities but failed to make formal
reports of alleged threats to the police as advised to do. The RAD then set out
the RPD’s findings on state protection and concluded those findings were
reasonable since the PA failed to follow through on the police’s advice
notwithstanding that the PA is a well-educated and resourceful individual.
(3)
Decision in Green
[12]
Justice Kane allowed the applicants’ judicial
review application from the First RAD Decision because the RAD erred in (1)
performing a judicial review type function rather than an appellate function
and (2) relying on the RPD’s credibility findings, findings which the RAD found
unreasonable, as a basis to conclude that the PA did not rebut the presumption
of state protection.
[13]
Justice Kane noted that the RAD recognized that the
RPD indicated that the state protection findings it made were based on the
credibility findings. Justice Kane further noted that the RAD, having found
that those credibility findings were unreasonable, had no basis to uphold the
RPD’s finding that the applicants failed to rebut the presumption of adequate
state protection.
[14]
Justice Kane returned the matter to the RAD for
reconsideration.
C.
Decision under Review
[15]
In reconsidering the matter, the RAD again confirmed
the RPD’s decision that the applicants are neither Convention refugees nor
persons in need of protection (the RAD Redetermination Decision).
[16]
The applicants sought to place new evidence, in
the form of an affidavit explaining that stress and anxiety affected her
testimony at the RPD, before the RAD. The RAD found the affidavit addressed
evidence fully canvassed at the RPD and was therefore not new evidence as
contemplated under subsection 110(4) of the IRPA. In rejecting the new evidence
the RAD also denied the applicants’ request for an oral hearing under
subsection 110(6) of the IRPA.
[17]
The RAD then addressed the nature of its role
relying on Justice Michael Phelan’s decision in Hurugulica v Canada
(Minister of Citizenship and Immigration), 2014 FC 799 at para
54-55, 30 Imm LR (4th) 115. The RAD concluded that its role was to
conduct a hybrid appeal. The RAD described its role as reviewing all aspects of
the RPD’s decision and independently assessing the applicant’s claim while recognizing
it can respect the conclusions of the RPD on issues of credibility where the
RPD enjoys a particular advantage.
[18]
The RAD then confirmed the RPD’s decision
finding that the applicants failed to rebut the presumption of adequate state
protection in Jamaica and that the PA had not made a reasonable and diligent
effort to seek state protection. The RAD found, based on the objective
evidence, that adequate state protection is available for victims of
sexual/domestic abuse in Jamaica and the applicants would be able to seek state
protection were they to face risk from Mr. Bryan. While the RAD acknowledged
that the “RPD had some credibility concerns” it
did not address the credibility findings beyond noting in its discussion of the
RAD’s role that it “can recognize and respect the
conclusions of the RPD on issues such as credibility.”
II.
Position of the Parties
A.
Applicants’ Position
[19]
The applicants argue that the RAD erred in in
failing to admit the PA’s proposed new evidence relating to her state of mind
before the RPD. The applicants submit that the evidence dealt with issues of
procedural fairness arising out of the actual conduct of the hearing, evidence
that was unavailable prior to the hearing.
[20]
The applicants further submit that the RPD erred
in treating the issues of credibility and state
protection as discrete. Instead the applicants argue that these matters were
found to be linked by Justice Kane where she concluded in Green that the
RPD based its state protection findings on its credibility findings. The
applicants argue that the doctrines of issue estoppel and stare decisis prevented
the RAD from concluding otherwise on redetermination without at least turning
its attention to Justice Kane’s findings.
[21]
The applicant’s further argue that even if the RAD was not bound by Justice Kane’s conclusion in Green,
the RAD’s failure to address the issue of credibility constitutes an
unreasonable error in its evaluation of the evidence before it. The applicants submit
that they put the issue of the RPD’s negative credibility findings before the
RAD in their submissions and the RAD Redetermination Decision erred by failing
to address the issue of credibility in the redetermination. There was, the
applicants argue, no reasonable basis to conclude that the RPD’s state
protection findings were not reliant upon the RPD’s credibility findings.
B.
Respondent’s Submissions
[22]
The respondent argues that the RAD conducted an
independent assessment of the evidence, deferring to the RPD on the question of
credibility and reaching a reasonable conclusion that adequate state protection
would be forthcoming to the applicants in Jamaica.
[23]
The respondent argues that Justice Kane’s
decision was not binding upon the RAD in its independent assessment of the
evidence on redetermination and as such there is no merit to the issue estoppel
argument. The respondent further argues that Justice Kane issued no direction in
respect of the redetermination and made no conclusions of fact regarding the
reasonableness of the RPD’s credibility analysis. As a result, the RAD did not
ignore Green or breach the principle of stare decisis.
[24]
The respondent also submits that the applicant
has misread Justice Kane’s decision when stating that credibility was
identified as a central issue on appeal to the RAD. Finally, the respondent
argues that the RAD reasonably found the proposed affidavit was not new
evidence under subsection 110(4) of the IRPA.
III.
Issues and Analysis
[25]
While the applicant has identified a number of
issues, the RAD’s failure to address the RPD’s credibility findings despite:
(1) the RPD’s linking of credibility to the issue of state protection in its
decision; and (2) the applicants’ arguments before the RAD that the RPD’s
negative credibility findings impacted the state protection determination, is determinative.
[26]
In reaching its state
protection determination, the RPD relied on two core findings: (1) the PA only
went to the police on one occasion contrary to her allegation of making five or
six visits; and (2) the PA did not follow the instructions in the Police Report
notwithstanding her allegations that the Police Report was not accurate. In rejecting
the PA’s evidence in these two key areas the RPD expressly and unequivocally points
to the RPD’s “previous credibility findings” as the
basis for rejecting the PA’s evidence.
[27]
This is not a case where the RPD found the
applicant not to be credible in respect of her alleged fear of persecution or
risk and then concluded that even if it was wrong in that regard adequate state
protection exists. This is a situation where the credibility findings relate to
the operational adequacy of state protection where the RPD did not disbelieve
the applicants’ fear of persecution or risk.
[28]
In this case the RPD did not disbelieve that the
PA was a victim of domestic violence, that Mr. Bryan had attempted to abduct
Casey and that the PA had been attacked on two occasions by unknown assailants.
Instead, the RPD did not accept the PA’s evidence as it related to her efforts
to seek state protection, evidence that was rejected on the basis of prior
credibility findings. Having rejected the PA’s evidence relating to her efforts
to seek state protection the RPD concluded that the applicants failed to rebut
the presumption of state protection.
[29]
In appealing the RPD’s decision to the RAD the applicants
consistently submitted to the RAD, initially and on redetermination, that the
RPD erred on the issue of credibility and that those credibility findings were
contrary to the Gender Guidelines. The applicants also consistently advanced
the argument that the RPD’s credibility findings led the RPD to erroneously
conclude that the PA went to the police on only one occasion and that the
Police Report accurately reflected the police response on that occasion.
[30]
The applicants’ having raised the RPD’s
credibility findings as an issue in the state protection analysis triggered the
obligation on the RAD to consider the alleged errors on redetermination (Huruglica
v Canada (Minister of Citizenship and Immigration), 2016 FCA 93 at para 103).
[31]
The Redetermination Decision however does
nothing more than acknowledge that “the RPD had some
credibility concerns”. It then ignores these concerns in addressing what
it characterizes as the determinative issue in the claim, state protection.
[32]
Although it does not actively consider or analyse
the RPD’s credibility findings, the RAD nonetheless implicitly endorses these
findings by relying on the contents of the Police Report to conclude adequate
state protection would be forthcoming for the applicants. It is not evident how
or on what basis the RAD reached this conclusion on redetermination.
[33]
The failure of the RAD, in re-determining the
appeal, to address the very issues raised by the applicants that were central
to the appeal of the RPD’s decision is a reviewable error that undermines the
transparency of the RAD Redetermination Decision rendering it unreasonable.
[34]
In light of my conclusion I need not address the
legal effect of Justice Kane’s decision in Green.
[35]
The applicants also argue that the RAD erred in
refusing to accept the applicants’ new evidence. I respectfully disagree. I am
satisfied that the RAD’s decision not to admit the evidence pursuant to
subsection 110(4) on the basis that the evidence was canvassed before the RPD
and in the applicants’ Memorandum of Fact and Law submitted to the RAD was
reasonable.
IV.
Conclusion
[36]
The matter is returned for a second redetermination
that is to recognize that the RPD’s state protection findings are dependent upon
and directly linked to the findings of credibility.
[37]
The parties did not identify a question for
certification.
V.
Costs
[38]
In oral submissions the applicants’ counsel
argued that this matter warranted an award of costs pursuant to Rule 22 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22.
[39]
The crux of the argument advanced was that the
respondent had unreasonably and unnecessarily prolonged the proceedings by not
agreeing to return the matter for a second redetermination in light of an
obvious error. Rule 22 provides that “No costs shall be
awarded to or payable by any party in respect of an application for leave, an
application for judicial review or an appeal under these Rules unless the
Court, for special reasons, so orders.”
[40]
The jurisprudence establishes that the threshold
for establishing the existence of “special reasons”
is high and the issue must be assessed based on the particular circumstances of
each case (Dhaliwal v Canada (Minister of Citizenship and Immigration),
2011 FC 201 at paras 29 and 30, 384 FTR 261 [Dhaliwal]).
[41]
A party’s conduct that unreasonably and
unnecessarily prolonged the proceedings has previously been found to amount to “special reasons”. However the jurisprudence also
makes clear that the Minister’s opposition to an application for judicial
review does not give rise to special reasons for costs (Dhaliwal at para
33). While I am sympathetic to the circumstances of the applicants in this
matter, the respondent has not acted unfairly, oppressively, or improperly or
unreasonably prolonged proceedings in opposing the application for judicial
review (Johnson v Canada (Minister of Citizenship and Immigration), 2005
FC 1262 at para 26, 52 Imm LR (3d) 76). The special reasons threshold has not
been met here, no costs will awarded.
Email this Content