Docket: IMM-4623-15
Citation:
2016 FC 781
St. John’s, Newfoundland and Labrador, July 13, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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KIBROM KEBEDOM
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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]
Mr. Kibrom Kebedom (“the Applicant”) seeks
judicial review of the decision of the Immigration and Refugee Board, Refugee
Protection Division (the “RPD”), denying his claim for protection, pursuant to
section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “Act”).
[2]
The Applicant claims to be a citizen of Eritrea.
He alleges to be at risk of persecution as a consequence of mandatory
conscription into the National Service. He was ordered to report for National
Service in July 2014 and fled instead. He also alleges to be at risk of
persecution as a refugee claimant.
[3]
The RPD found that the Applicant’s claim had no
credible basis. His identity was the determinative issue before the RPD. The RPD
rejected the claim on the basis that his identity documents were insufficient,
on a balance of probabilities, to establish his identity as a citizen of
Eritrea.
[4]
In support of his identity, the Applicant
submitted a birth certificate, a school report card and copies of his parent’s
identity cards. The RPD assigned these documents no weight.
[5]
After the hearing held on September 17, 2015,
the Applicant, by letter dated September 20, 2015, requested the opportunity to
submit post-hearing evidence and asked the matter remain under reserve for five
days.
[6]
The RPD refused the Applicant’s request to file
further evidence. It found that he had not provided any information as to what
documents he sought to adduce, their relevance or why the documents could not
be filed earlier.
[7]
The Applicant raised four issues in this application
for judicial review:
A. Did the RPD breach procedural fairness by refusing to allow the
Applicant to submit post-hearing evidence;
B. Was the RPD’s assessment of the Applicant’s evidence unreasonable;
C. Were the RPD’s plausibility findings unreasonable;
D. Did the RPD commit a reviewable error by finding that the claim had
no credible basis.
[8]
As a preliminary matter, the Minister of
Citizenship and Immigration (the “Respondent”) objects to the inclusion in the
Applicant’s Application Record of the post-hearing evidence that was not
accepted by the RPD.
[9]
The Respondent submits that an application for
judicial review should be conducted on the basis of the record before the
decision maker. He argues that the evidence does not fall within the narrow
exceptions to that general rule, relying upon the decision in Ontario Assn.
of Architects v. Assn. of Architectural Technologists of Ontario, [2003] 1
F.C.R. 331.
[10]
The Respondent argues that the RPD is under no
duty to accept the evidence and properly exercised its discretion in denying
the request to provide evidence after the close of the hearing; see the
decision in Farkas v. Canada (Minister of Citizenship and Immigration),
2014 FC 542 at paragraph 12.
[11]
The first issue to be addressed is the applicable
standard of review.
[12]
The refusal to accept new evidence after the
close of a hearing involves discretion. In this case, the Applicant frames this
refusal as an issue of procedural fairness. An alleged breach of procedural fairness
is reviewable on the standard of correctness; see the decision in Behary
v. Canada (Citizenship and Immigration), 2015 FC 794.
[13]
The Board’s credibility and identity findings
are reviewable on the standard of reasonableness; see the decision in Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.).
[14]
Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process,
and requires that the decision fall within a range of possible, acceptable
outcomes; see the decision in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at paragraph 47.
[15]
The Respondent’s objection to the Applicant’s
inclusion of the post-hearing evidence in his Application Record will be
addressed next.
[16]
The Applicant submits that the post-hearing
evidence was adduced to establish a breach of procedural fairness, which is a
recognized exception to the general rule that judicial review should be
conducted on the basis of the evidence before the decision maker.
[17]
I agree that material extraneous to the material
before the decision maker can be introduced in an application for judicial
review in support of an argument about a breach of procedural fairness; see the
decision in Ontario Assn. of Architects, supra at paragraph
30. I reject the Respondent’s arguments on this issue.
[18]
However, as set out below, I am not persuaded
that any breach of procedural fairness occurred. I will ignore the proposed
post-hearing evidence that is included in the Application Record, for the purpose
of deciding this application.
[19]
The third issue is whether the RPD breached the
duty of procedural fairness by not allowing the Applicant to provide
post-hearing evidence.
[20]
Rule 43(3) of the Refugee Protection Division
Rules, SOR/2012-256 sets out factors to be considered when a party makes an
application to provide a document as evidence after a hearing as follows:
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(3) In deciding the application, the
Division must consider any relevant factors, including
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(3) Pour statuer sur la demande, la
Section prend en considération tout élément pertinent, notamment :
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(a) the document’s relevance and probative
value;
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a) la pertinence et la valeur probante
du document;
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(b) any new evidence the document brings
to the proceedings; and
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b) toute nouvelle preuve que le document
apporte aux procédures;
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(c) whether the party, with reasonable
effort, could have provided the document as required by rule 34
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c) la possibilité qu’aurait eue la
partie, en faisant des efforts raisonnables, de transmettre le document aux
termes de la règle 34.
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[21]
I agree with the Respondent that the RPD is
under no legal duty to accept post-hearing evidence.
[22]
Discretionary decisions are subject to judicial
intervention if made for improper reasons or with reference to irrelevant
considerations; see the decision in Maple Lodge Farms v. Government of
Canada, [1982] 2 S.C.R. 2.
[23]
I am not persuaded that the RPD erred in the
exercise of its discretion to refuse the post-hearing evidence. The letter from
Applicant’s Counsel dated September 29, 2015 does not indicate what evidence he
sought to file or why that evidence could not have been filed in accordance
with Rule 34. The Applicant had not met the criteria set out in Rule 43(3).
[24]
The next issue to be addressed is the
reasonableness of the RPD’s assessment of the Applicant’s evidence.
[25]
The RPD gave the Applicant’s birth certificate
no weight, despite finding that it “does not contain
any flaws on its face.” It found that, in light of the availability of
fraudulent documents and its finding that the Applicant was not credible, the
birth certificate was neither credible nor trustworthy.
[26]
In my opinion, the fact that fraudulent identity
documents are available in Eritrea and in the Eritrean expatriate community in
Canada is not a sufficient basis to reject the Applicant’s birth certificate;
see the decision in Chen v. Canada (Minister of Citizenship and Immigration),
2015 FC 1133.
[27]
The availability of fraudulent documents in a
country does not, per se, mean that the Applicant was not credible.
[28]
It follows that the RPD’s assessment of the
birth certificate was unreasonable, in light of the standard of reasonableness
referred to above.
[29]
The remaining issue is the no credible basis
finding.
[30]
A finding of no credible basis may only be made
where there is no trustworthy or credible evidence that could support
recognition of the claim; see the decision in Rahaman v. Canada (Minister of
Citizenship and Immigration) (C.A.), [2002] 3 F.C.R. 537 at paragraph 28.
Since I have found that the RPD’s assessment of the Applicant’s birth
certificate was unreasonable, I conclude that the finding of no credible basis
is also unreasonable.
[31]
In my opinion, the RPD’s no credible basis
finding is also flawed since the Applicant’s knowledge of Tigrinya, the most
widely spoken language in Eritrea, is credible evidence that could support the
recognition of his refugee claim; see the decision in Tran v. Canada
(Citizenship and Immigration), 2013 FC 1080 at paragraph 8.
[32]
In the result, this application for judicial
review is allowed and the matter is remitted to a differently constituted panel
of the RPD for redetermination. There is no question for certification
proposed.
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