Docket: IMM-2227-15
Citation:
2016 FC 315
Ottawa, Ontario, March 14, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SILVIA MYRIAN MOYA
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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]
The applicant seeks judicial review of the
decision of the Refugee Appeal Division of the Immigration and Refugee Board
[RAD] dated April 27, 2015 which dismissed her appeal of the decision of the
Refugee Protection Division [RPD]. The RAD confirmed that the applicant is
neither a Convention refugee nor a person in need of protection. The RAD found
that the applicant would have been a Convention refugee in the past and
considered the “compelling reasons” exception
pursuant to subsection 108(4) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act], but found that the exception did not apply in the
circumstances.
[2]
On judicial review, the applicant submits that
the RAD erred in its review of the RPD decision with respect to: the
application of the Chairperson’s Gender Guidelines [Guidelines]; the assessment
of the psychological report; the assessment of the applicant’s credibility;
and, the state protection analysis. The applicant also submits that the RAD
erred in its approach to the appeal and its assessment of the evidence and
applied the wrong test for the compelling reasons exception.
[3]
I find that the RPD performed its appellate role
and conducted an independent assessment of the evidence, including the RPD’s
credibility findings, and reasonably found that the RPD did not err. The RAD
interpreted subsection 108(4) based on the jurisprudence, considered all the
evidence and reasonably found that the applicant had not established compelling
reasons for refusing to avail herself of the protection of her country of
origin. Deference is owed to the RAD’s determination and it is not for the
Court to re-weigh the evidence.
I.
Background
[4]
The applicant is a citizen of Argentina. She
recounts that she filed a refugee claim based on her political opinion when she
first arrived in Canada in December 1988, but is unaware of what happened to
this claim. The record indicates that her claim was not evaluated, but received
an approval-in-principle by the Canadian Immigration Backlog Office in 1996.
She did not pursue her application for permanent residence, which was deemed
abandoned in 2005.
[5]
She filed a second refugee claim in September
2014 based on allegations that her former husband, Juan Francisco Gil [Juan],
who she joined in Canada in 1988, was abusive and violent both while they were
together in Argentina and in Canada and that he continues to threaten her.
Prior to the RPD hearing, the applicant submitted an updated Basis of Claim
form [BOC] with a detailed narrative of her account of severe abuse by Juan.
[6]
The applicant left Juan in 1989 and the two were
eventually divorced in 2002. Juan was convicted in Canada of sexual assault
with respect to another person and was incarcerated. Following his release, he
was deported to Argentina in 1992. The applicant alleges that she has received
threats from people calling on Juan’s behalf. The applicant also alleges that
Juan’s sister advised the applicant’s father that Juan had died around 2003 or
2004, in order to lure the applicant to return to Argentina. She further alleges
that Juan’s friends visited her family’s home looking for her in 2009. The
applicant claims that Juan is dangerous, the police will not help her and that
she fears returning to Argentina.
II.
The RPD Decision
[7]
The RPD found that the applicant is not a Convention
refugee or person in need of protection.
[8]
The RPD accepted that the applicant may have
suffered abuse, but did not find her account or the supporting evidence of
recent threats from Juan to be credible. The applicant’s statements regarding
her interactions with the police in Argentina and her explanation of her
efforts to obtain permanent resident status in Canada were also found to be not
credible.
[9]
The determinative issue for the RPD was state
protection. The RPD found that state protection would be available if the
applicant were to return to Argentina and that she had not rebutted the
presumption of state protection.
[10]
The RPD also found that the applicant would not
have been a Convention refugee in the past and, therefore, the compelling
reasons exception did not apply. The RAD noted that the applicant had
embellished her claim, which called into question all of her evidence,
including the abuse she suffered.
III.
The RAD Decision
[11]
The RAD confirmed the decision of the RPD and
found that the applicant is not a Convention refugee or a person in need of
protection. The RAD also found that there were no compelling reasons to exempt
the applicant from this finding.
[12]
The RAD cited the decision in Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] 4 FCR
811 [Huruglica] and indicated it would conduct a full fact-based appeal.
[13]
The RAD noted that credibility is an issue in
every claim, although, as the RPD found, it was not the determinative issue.
The RAD assessed the credibility findings and deferred to several, but not all,
of the RPD’s findings.
[14]
The RAD agreed with the RPD’s findings regarding
the credibility of the supporting evidence from the applicant’s sisters, that
aspects of her account of her interactions with the police in Argentina were
not plausible, and that her explanation of her efforts to obtain permanent
resident status in Canada was not credible.
[15]
The RAD found that the RPD erred by offering the
applicant an opportunity to submit additional documents, but not reconvening
after receiving those documents. However, given that the determinative issue
was state protection, the RAD found that this error was not fatal.
[16]
The RAD found that the RPD had applied the
Gender Guidelines and was sensitive to the needs of the applicant. The RAD also
found that the RPD had considered the psychologist’s report. The RAD noted that
the RPD did not dispute the diagnosis of PTSD, but this did not overcome the
credibility concerns or establish that the applicant’s depression or diagnosis
of PTSD was caused by persecution in Argentina. The RAD added, “[T]here is no persuasive evidence that the doctor is in any
position to state categorically that the claimant before it is a victim of
domestic abuse.”
[17]
The RAD assessed the country condition documents
and, based on a forward looking assessment, agreed with the RPD and found that
there would now be adequate state protection in Argentina if the applicant were
to return.
[18]
However, the RAD disagreed with the RPD’s
finding that the applicant was not a Convention refugee or a person in need of
protection in the past. The RAD found that the RPD’s findings that the
applicant had suffered abuse and that state protection measures between 1984
and 1988 would have been less effective than today were inconsistent with its
finding that the applicant had not rebutted the presumption of state protection
in the past.
[19]
As a result of finding that the applicant would
have been a Convention refugee in the past, the RAD considered whether to apply
the compelling reasons exception.
[20]
The RAD acknowledged the applicant’s argument
that it should adopt the approach in Suleiman v Canada (Minister of
Citizenship and Immigration), 2004 FC 1125, [2004] FCJ No 1354 (QL) [Suleiman],
which provides that a variety of circumstances can trigger a compelling reasons
finding. The applicant also argued that the RAD should find that the RPD erred
in not finding that the repeated violent assaults rose to the level of “atrocious and appalling” persecution, if that
standard must be met, and in not explaining why it did not find compelling
reasons.
[21]
The RAD referred to several cases, some of which
were decided long before Suleiman and others more recently, and found
that although Suleiman addresses the issue of subjective fear, it does
not obviate the need to assess the level of past persecution.
[22]
The RAD noted that persecution, by definition,
involves death, physical harm or other penalties and that the compelling
reasons exception applies to a very limited group of refugee claimants and to
cases of exceptional persecution. The RAD identified its task as to determine
whether the applicant’s circumstances could be distinguished from cases of
persecution that do not fall within subsection 108(4), which is a question of
fact. The RAD noted that the level of atrocity must be considered and that several
cases have used the term “atrocious and appalling”,
adding that the applicant’s experience of persecution did not rise to that
level.
[23]
The RAD also noted the applicant’s arguments
that the RPD had erred in its compelling reasons analysis by not considering
the psychologist’s report and the psychological after-effects of her abuse.
[24]
The RAD acknowledged that evidence of continuing
psychological after-effects is relevant to the compelling reasons
determination, but found that it is not a separate test to be met.
[25]
Although the RAD disagreed with the RPD and
accepted that the applicant would have been a Convention refugee in the past,
the RAD found, based on its independent assessment of all the evidence,
including the psychological report, the applicant’s background, the passage of
time and the sustainable credibility findings, that there was insufficient
persuasive evidence to conclude that she had met the high threshold for
compelling reasons.
IV.
The Issues
[26]
The applicant raises the same issues on judicial
review with respect to the RAD decision as she did before the RAD with respect
to the RPD decision:
(1)
The RAD erred in finding that the RPD considered
and applied the Gender Guidelines;
(2)
The RAD erred in its assessment of the RPD’s
credibility findings and in confirming the RPD’s credibility findings without a
sufficiently independent assessment;
(3)
The RAD erred in its assessment of the expert evidence,
i.e. the psychologist’s report;
(4)
The RAD applied the wrong test for state protection
and erred in its assessment of state protection;
(5)
The RAD erred by applying the wrong test for
compelling reasons, and erred in not finding that compelling reasons existed.
[27]
The applicant also raises additional arguments
relating to these issues, all of which have been addressed, resulting in a
lengthy decision.
V.
The Standard of Review
[28]
The RAD conducted an appeal of the RPD’s
decision. The Court conducts a judicial review of the RAD’s decision.
[29]
With respect to the approach to be applied by
the RAD to the RPD decision, the jurisprudence has been consistent in
establishing that the RAD should perform its appellate function: Huruglica
at para 54. With respect to questions of credibility, although there are some
nuances, the jurisprudence has established that the RAD may defer to the RPD
where the RPD has heard the witnesses directly, has had an opportunity to probe
their testimony or has had some advantage not enjoyed by the RAD (see, for
example, Huruglica at para 55; Nahal v Canada (Minister of Citizenship
and Immigration), 2014 FC 1208 at para 25, [2014] FCJ No 1254 (QL)).
However, the Court has also noted that such deference should follow from an
independent assessment of the evidence, given that the RAD is performing an
appellate function (see, for example, Khachatourian v Canada (Minister of
Citizenship and Immigration), 2015 FC 182 at para 31, [2015] FCJ No 156
(QL) [Khachatourian]; Balde v Canada (Minister of Citizenship and
Immigration), 2015 FC 624 at para 23, [2015] FCJ No 641 (QL)).
[30]
With respect to the Court’s review of the RAD’s
decision, the applicant argues that the RAD applied the wrong legal test for
both state protection and compelling reasons.
[31]
There is a distinction between whether the
correct legal test was applied, which is reviewed on the standard of
correctness, and for which no deference is owed, and whether the decision maker
applied the correct test to the particular facts, which is a question of mixed
fact and law reviewed on the reasonableness standard, and for which deference
is owed.
[32]
The RAD’s state protection and compelling
reasons analyses, which involve the application of the law to the facts, and
the RAD’s decision regarding the RPD’s credibility findings are reviewed on the
standard of reasonableness.
[33]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
The Court will not re-weigh the evidence or re-make the decision.
VI.
The RAD did not err in finding that the RPD had
considered and applied the Gender Guidelines
[34]
The applicant acknowledges that the RPD offered
procedural protections to her in accordance with the Guidelines, but argues
that the RAD did not go far enough in its independent assessment of the
evidence, including the psychological report, to determine whether the RPD had
considered the applicant’s evidence through the lens of a victim of domestic
violence. Similarly, the applicant argues that the RAD did not adequately apply
the Guidelines in assessing the content of her testimony.
[35]
I do not agree. It is apparent that the RAD
assessed the evidence, including reviewing the audio recording of the RPD
hearing, to conclude that the RPD had applied the Guidelines and was sensitive
to the applicant’s needs as a victim of domestic violence. The RAD did not
ignore or misapply the Guidelines in its assessment of the applicant’s evidence
or the psychologist’s report.
[36]
The Guidelines are not the law but, as the name
implies, are intended to guide the decision maker. In Diallo v Canada
(Minister of Citizenship and Immigration), 2004 FC 1450 at paras 32-33, 259
FTR 273 [Diallo], Justice Mactavish noted that the Guidelines alert the
decision maker “to the effect that social, cultural,
traditional and religious norms can have on the testimony of those claiming to
fear gender-based persecution.”
[37]
In Karanja v Canada (Minister of Citizenship
and Immigration), 2006 FC 574 at paras 5-7, [2006] FCJ No 717 (QL), Justice
Pinard referred to the principles that the Guidelines are not intended to serve
as a “cure” for deficiencies in the applicant’s
claim or evidence; cannot be treated as corroborating any evidence of
gender-based persecution; do not create new grounds to find persecution; and,
do not need to be specifically mentioned when they are considered.
[38]
The Guidelines encourage the decision maker to
consider the applicant’s testimony in accordance with her circumstances as a
domestic abuse victim in a society that differs from Canada. They do not cure
the reasonable credibility findings, which include the applicant’s claims of
recent threats, and cannot buttress the state protection analysis.
[39]
The RAD conducted its independent assessment of
the evidence with the Guidelines in mind and reasonably found that the RPD
applied the Guidelines.
VII.
The RAD did not err in its assessment of the RPD’s
credibility findings
[40]
The applicant argues that the RAD erred by not
conducting a sufficiently independent assessment of the evidence and in
confirming the RPD’s credibility findings.
[41]
The applicant also submits that neither the RPD
nor the RAD made clear credibility findings regarding her account of
persecution which is highly relevant to the establishment of compelling
reasons.
[42]
I find that the RAD followed the guidance of Huruglica
and conducted an independent assessment of the evidence, including the evidence
upon which the credibility findings were based. The RAD is entitled to defer to
some or all of those findings and clearly indicated whether it did so.
[43]
The RAD acknowledged that the RPD found that
state protection was the determinative issue, although the RPD also found that
the applicant was not a credible witness. The RAD reasonably found that this
was not an error given that the credibility findings were made within the
context of the state protection analysis, i.e., the abuse alleged by the
applicant and her efforts to seek state protection and the evidence of recent
threats. The RAD noted that credibility is always an issue and that this had
been clearly stated at the outset of the RPD hearing.
[44]
The RAD considered all the plausibility and
credibility findings made by the RPD. The RAD reasonably found that the
implausibility finding relating to the lack of police action in Argentina was
not an error, noting the inconsistency in the applicant’s statements.
[45]
With respect to the applicant’s efforts to
pursue permanent resident status in Canada, the RAD noted that it listened to
the recording of the hearing which confirmed that the applicant was given ample
opportunity to explain her delay and lack of action and that the RPD probed
those explanations. The RAD reasonably concluded, based on its assessment, that
her explanations did not make sense.
[46]
Based on its own assessment of the evidence, the
RAD confirmed the RPD’s finding that the events recounted in the letters from
the applicant’s sisters, alleging recent threats from Juan, did not occur, as
the letters were contradictory and lacked specific details. The applicant’s
submission that these credibility findings should not be attributed to her
overlooks that the letters were submitted to support her assertion that Juan
continues to threaten her. The letters did not do so. The RAD’s findings are
reasonable.
[47]
It cannot be said that the RAD simply deferred
to the RPD’s credibility findings. For example, the RAD did not defer to the
RPD’s findings regarding a letter from a friend suggesting that Juan planned
revenge. In addition, despite the RAD’s deference to the RPD’s findings about
the applicant’s attempts to engage the police in Argentina, the RAD found that
the applicant would have been a Convention refugee at that time because state protection
was not sufficient.
VIII.
The RAD did not err in its assessment of the
psychologist’s report
[48]
The applicant submits that the RAD failed to
properly consider the psychologist’s report which is relevant to her account of
the persecution she suffered, including the subjective trauma she would
experience upon return to Argentina, and which, in turn, is relevant to the
application of the compelling reasons exception.
[49]
The applicant notes that the psychologist, Dr.
Browne, stated that her PTSD resulted from the stressors associated with
domestic violence. She argues that because neither the RAD nor the RPD made
explicit negative credibility findings regarding her testimony, there is no
reason to doubt Dr. Browne’s conclusions. The applicant also notes that Dr.
Browne stated that she did not exaggerate and, therefore, there is no reason
for the RAD to give this report little weight.
[50]
The applicant argues that the RAD erred by
relying on Csesak v Canada (Minister of Citizenship and Immigration), 2013
FC 1149, 235 ACWS (3d) 1054 [Csesak], which the applicant characterizes
as an outlier in the jurisprudence, for the proposition that expert evidence
should be accorded little weight by administrative tribunals. If the RAD had
concerns about the report it could have exercised its powers under the Inquiries
Act, RSC, 1985, c I-11, to question the psychologist.
[51]
The applicant also submits that the RAD erred in
deferring to the RPD’s finding that there could have been other causes for her
depression because such a finding goes beyond the knowledge of the RPD and the
RPD does not enjoy any particular advantage in making this determination.
[52]
I do not agree that the RAD erred in its
treatment of the psychologist’s report.
[53]
Contrary to the applicant’s submission, the RPD
and RAD did not accept that the applicant’s allegations of persecution were
completely credible. The RAD found that it was open to the RPD to “cast aspersions” on the credibility of the applicant.
However, unlike the RPD, the RAD found that the applicant would have been a Convention
refugee in the past.
[54]
Dr. Browne’s report states that the applicant
was referred for psychological screening to assess her psychological
functioning and to assist her claim for refugee protection. Dr. Browne clearly
notes that the events were recounted to her by the applicant. Dr. Browne
describes the results of four tests administered to the applicant noting that:
the applicant’s scores on these tests were consistent with severe anxiety,
severe depression and a severe level of post-traumatic distress; and, the
results did not indicate signs of symptom exaggeration. Dr. Browne concludes
that the applicant “presents with Post Traumatic Stress
Disorder … resulting from the stressors associated with years of domestic
violence and the lack of confidence concerning her future prospects.”
[55]
The RAD noted that the RPD did not dispute the
diagnosis, but could not conclude that the applicant’s depression was the
result of persecution in Argentina. Although the applicant takes issue with the
RAD’s deference to the RPD, the RAD’s comments must be read in the context of
its consideration of Dr. Browne’s report. In addition, the RAD’s deference to
the RPD is not the basis of its finding that “there is
no persuasive evidence that the doctor is in any position to state
categorically that the claimant before it is a victim of domestic abuse.”
That finding is based on the RAD’s own assessment of the evidence, its
deference to the RPD’s credibility findings, and its understanding of the
jurisprudence.
[56]
Although the applicant submits that the RAD
erred in relying on Csesak to find that the psychologist’s report is not
persuasive evidence that the applicant is a victim of domestic abuse, this
mischaracterizes both the RAD’s findings and the decision in Csesak.
[57]
Other jurisprudence has also cautioned that the
recounting of events to a psychologist or a psychiatrist does not make these
events more credible and that an expert report cannot confirm allegations of
abuse. For example, the RAD referred to Rokni v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 182 (QL), 53 ACWS (3d) 371
(FCTD), and Danailov v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1019 (QL), 44 ACWS (3d) 766 (FCTD), which note that opinion
evidence is only as valid as the truth of the facts upon which it is based. The
same caution was noted by Justice Phelan in Saha v Canada (Minister of
Citizenship and Immigration), 2009 FC 304 at para 16, 176 ACWS (3d) 499: “It is within the RPD’s mandate to discount psychological
evidence when the doctor merely regurgitates what the patient says are the
reasons for his stress and then reaches a medical conclusion that the patient
suffers stress because of those reasons.”
[58]
In Molefe v Canada (Minister of Citizenship
and Immigration), 2015 FC 317, [2015] FCJ No 304 (QL), Justice Mosley
addressed the applicant’s argument that her psychological report had not been
considered by the RPD in evaluating her testimony. Justice Mosley endorsed the
comments of Justice Annis in Csesak, noting:
[31] Expert opinion reports should not
be given exalted status in administrative proceedings simply because they are
prepared by a licensed professional. That is particularly true, when as here,
the report is not relevant to the Board’s key credibility findings and
determination on state protection. In Czesak v Canada (Citizenship and
Immigration), 2013 FC 1149 at paras 37-40, Justice Annis warned of the
dangers posed by expert reports submitted to administrative tribunals.
Moreover, I am of the view that decision-makers
should be wary of reliance upon forensic expert evidence obtained for the
purpose of litigation, unless it is subject to some form of validation.
This remark would apply to the report of Dr. Koczorowska which went as far
as to advocate on the applicant’s behalf in the guise of an opinion on the very
issue before the panel.
Our legal system has a long
experience in dealing with forensic experts testifying on matters relating to
technical evidence for the purpose of assisting courts in their determinations.
From that experience, the courts have developed what I would describe as a
guarded and cautionary view on conclusions of forensic experts which have not
undergone a rigorous validation process under court procedures.
[…]
This is not to say that every expert
report prepared for litigation should be dismissed as having no, or little,
weight. But what the court’s experience with forensic experts does suggest
in relation to these reports being proffered before administrative tribunals where
there exists no defined procedure to allow for their validation, is that
caution should be exercised in accepting them at face value, particularly when
they propose to settle important issues to be decided by the tribunal. In
my view therefore, unless there is some means to corroborate either the
neutrality or lack of self-interest of the expert in relation to the litigation
process, they generally should be accorded little weight.
[Emphasis added] (by Mosley J)
[59]
As noted above, the applicant pointed to excerpts
of Csesak, but the relevant passages reveal that Justice Annis’ concern
focused on psychological reports that advocate in the guise of an opinion and “propose to settle important issues to be decided by the
tribunal.” Justice Annis found that in such cases, without some way to
probe the opinion, little weight should be attached to it.
[60]
In the present case, Dr. Browne did not go so
far as to advocate that the applicant should be found to be a Convention
refugee or person in need of protection. Dr. Browne conducted a series of tests
to reach the diagnosis of PTSD. That diagnosis is not in dispute. However, the
applicant seeks to rely on the events reported to Dr. Browne and Dr. Browne’s
reference to the “stressors caused by domestic abuse”
as evidence of the nature of the abuse she experienced in Argentina or as corroboration
of her allegations.
[61]
The RAD did not err in finding, based on its
assessment of the evidence, that the RPD had considered Dr. Browne’s report,
did not dispute the diagnosis of PTSD but could not conclude that this was the
result of the alleged persecution. Moreover, Dr. Browne’s report did not and
could not address the credibility issues regarding the recent threats or the
state protection issues, which the RPD had found to be determinative.
[62]
The RAD also made its own findings. Contrary to
the applicant’s argument, the RAD did not state that it attached little weight
to the report. Rather, the RAD considered the report and found that it did not
overcome the credibility concerns noted by the RPD nor did it support that the
cause of the applicant’s PTSD was the alleged abuse by Juan.
[63]
With respect to the applicant’s submission that
the RAD displaced the role of the expert, it must be recalled that Dr. Browne’s
role was to assess the applicant’s psychological functioning, an assessment
which the RAD accepted.
[64]
The RAD did not err in referring to Csesak,
which reiterates and elaborates on the caution noted in other jurisprudence.
Moreover, the RAD did not base its assessment of Dr. Browne’s report on Csesak.
The RAD considered the appropriate weight to attach to it and it is not the
role of the Court to re-weigh the evidence.
[65]
Although the applicant points to the conclusions
of the test that indicated that she did not exaggerate, that test referred to
exaggeration of her symptoms and not of her account of persecution.
[66]
Dr. Browne’s report was also taken into account
by the RAD in the context of its consideration of the compelling reasons
exception, but as noted below, psychological after-effects do not automatically
lead to the application of the compelling reasons exception.
[67]
The applicant’s submission that the RAD could
have relied on its powers under the Inquiries Act to probe Dr. Browne’s
report does not respond to the issue noted by the RAD and in the jurisprudence
that recounting events of abuse to an expert does not buttress the account of
the abuse. Dr. Browne, even if summoned to appear before the RAD, could only
address the tests she administered, the results and the diagnosis, none of which
are in dispute.
IX.
The RAD did not err in its state protection
analysis
[68]
The applicant argues that the RAD erred in its findings
with respect to the RPD’s forward looking state protection findings. In
addition, the applicant argues that the RAD applied the wrong test for state
protection by failing to acknowledge that state protection must be adequate at
the operational level and by relying on the fact that Argentina is a democracy,
which does not necessarily mean that state protection is available.
[69]
The applicant adds that the RAD erred by relying
on Mudrak v Canada (Minister of Citizenship and Immigration), 2015 FC
188, [2015] FCJ No 180 (QL) [Mudrak], which she submits is inconsistent
with other jurisprudence, is contrary to the UNHCR principles and is currently
under appeal. In Mudrak, the Court found that governments should not be
required to demonstrate operational adequacy.
[70]
The applicant also argues that there should not
be a heavy evidentiary burden on refugee claimants to establish a lack of state
protection as this puts vulnerable claimants, particularly victims of gendered
violence, at a disadvantage.
[71]
I do not agree. Both the RPD and the RAD
understood the principles governing state protection, applied the correct test,
and reasonably found that state protection in Argentina is adequate, including
at the operational level, although not perfect, and that the applicant had not
met her onus to rebut the presumption of adequate state protection.
[72]
These principles start from the premise that
refugee protection is considered to be surrogate or substitute protection in
the event of a failure of national protection (Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689 at 709, 103 DLR (4th) 1). There is a presumption
that a state is capable of protecting its citizens which is only rebutted by
clear and convincing evidence that state protection is inadequate or
non-existent; the evidence adduced must be “relevant,
reliable and convincing evidence which satisfies the trier of fact on a balance
of probabilities that the state protection is inadequate” (Carrillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 30,
[2008] 4 FCR 636).
[73]
To be adequate, perfection is not the standard,
but state protection must be effective to a certain degree and the state must
be both willing and able to protect (Bledy v Canada (Minister of Citizenship
and Immigration), 2011 FC 210 at para 47, [2011] FCJ No 358 (QL)). State
protection must be adequate at the operational level (Henguva v Canada
(Minister of Citizenship and Immigration), 2013 FC 483 at para 18, [2013]
FCJ No 510 (QL); Meza Varela v Canada (Minister of Citizenship and
Immigration), 2011 FC 1364 at para 16, [2011] FCJ No 1663 (QL)).
[74]
As noted by the applicant, democracy alone does
not ensure effective state protection; the quality of the institutions
providing protection must be considered (Sow v Canada (Minister of
Citizenship and Immigration), 2011 FC 646 at para 11, [2011] FCJ No 824
(QL) [Sow]).
[75]
The onus on an applicant to seek state
protection varies with the nature of the democracy and is commensurate with the
state’s ability and willingness to provide protection (Sow at para 10; Kadenko
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1376 (QL)
at para 5, 143 DLR (4th) 532 (FCA)). However, an applicant cannot simply rely
on their own belief that state protection will not be forthcoming (Ruszo v
Canada (Minister of Citizenship and Immigration), 2013 FC 1004 at para 33,
[2013] FCJ No 1099 (QL)).
[76]
Contrary to the applicant’s argument, the RAD and
the RPD did not rely on the fact that Argentina is a democracy as a “proxy” for state protection, but thoroughly
considered the country condition documents.
[77]
The applicant has made no recent efforts to seek
protection in Argentina because she has been in Canada for almost 30 years. The
RPD and RAD could only consider the objective country condition evidence to
determine whether her unwillingness or inability to engage state protection
upon her return is justified.
[78]
The RPD extensively analyzed the documentary
evidence demonstrating action to address domestic violence at both
legislatively and at the operational level. The RPD noted the criminal
offences, including prohibitions on domestic violence and sexual violence, the
Femicide Law and the penalties for gender-based violence. The RPD also noted
the implementation of the Domestic Violence Office of the Supreme Court of
Argentina, which offers an interdisciplinary approach, including the provision
of services, referrals to shelters, risk assessments, protection orders and
training for the police, and noted other services and organizations to assist
victims. The RPD acknowledged that problems remained in responding to domestic
and gender-based violence, including the lack of financial resources for
victims and the need for attitudinal change.
[79]
There was no new evidence presented to the RAD.
The state protection analysis was based on its assessment of the same evidence
on the record before the RPD. The RAD noted that the assessment was forward
looking and did not err in finding that the RPD had conducted a thorough state
protection analysis.
[80]
The RAD referred to Mudrak, however, the
RAD’s finding that adequate state protection would be available was not based
on the proposition in Mudrak. The RAD reasonably found, based on its
review of the country condition documents and based on the well-established
jurisprudence, that there was adequate state protection at the operational
level. The RAD also confirmed the RPD’s finding, based on the RPD’s thorough
analysis, which highlighted several specific operational measures for domestic
violence victims, and found that the applicant would have adequate state
protection if she were to return to Argentina, acknowledging that some
obstacles remained, but perfection is not the standard.
[81]
Although the onus on the applicant to rebut the
presumption of state protection varies with the level of democracy, including
the quality of the institutions providing protection, the applicant did not
point to any country condition evidence which the RAD or RPD ignored or
misunderstood or which contradicted their findings that adequate, not perfect,
state protection would be available to the applicant. The onus is not reduced
because the applicant is a victim of domestic violence. The nature of the
applicant’s allegations and whether protection would be available to her as a
victim of domestic violence were considered in the context of the state
protection analysis.
[82]
The RAD acknowledged that the RPD did not say
why the applicant had not rebutted the presumption of state protection before
1988 while in Argentina, but found that this could be inferred from the
credibility findings. Contrary to the applicant’s arguments, this is not a
reviewable error or an improper inference by the RAD. As noted above, the RAD
did not even agree with this finding and found that the applicant would have
been a Convention refugee at that time.
[83]
The RAD agreed with the RPD that state
protection would be available to the applicant based on a forward looking
assessment. This finding has nothing to do with inferences about why she had
not rebutted the presumption in the past.
X.
Did the RAD err in applying the wrong test for
compelling reasons and in not finding that compelling reasons were established?
The Applicant’s Submissions
[84]
The applicant raises four arguments.
[85]
First, the applicant argues that the RAD
fettered its discretion by finding that her past persecution in Argentina was
not appalling and atrocious and did not go on to consider whether compelling
reasons existed to justify the exception. In other words, the RAD took the
approach that atrocious and appalling persecution was a condition precedent to
considering whether the applicant had established that there were compelling
reasons.
[86]
Second, or alternatively, the applicant argues
that the RAD failed to analyse the jurisprudence, which reveals two different
approaches to the determination of the compelling reasons exception. The
applicant argues that the RAD applied the “wrong”
test; it erred in law by requiring appalling and atrocious past persecution as
the threshold to find that an applicant has established compelling reasons.
[87]
The applicant argues that the focus in the
subsection 108(4) analysis should be on the words “compelling
reasons”, which are not limited to atrocious and appalling persecution.
The applicant submits that the RAD specifically found that she did not meet the
“high threshold” required to apply the
compelling reasons exception, which was based on the RAD’s erroneous view that
this high threshold requires appalling and atrocious past persecution.
[88]
The applicant submits that the jurisprudence
suggesting that the persecution must be atrocious and appalling, which is
derived from Canada (Minister of Employment and Immigration) v Obstoj,
[1992] 2 FC 739, [1992] FCJ No 422 (QL) (FCA) [Obstoj], should be
rejected because this interpretation goes beyond the clear words of subsection
108(4) and has been found to be an error.
[89]
The applicant points to Suleiman, where
the Court found that compelling reasons are not limited to appalling and
atrocious past persecution and should be interpreted with reference to all the
circumstances, including the subjective trauma that would be experienced by the
applicant upon return to her country. In Kotorri v Canada (Minister of Citizenship
and Immigration), 2005 FC 1195, [2005] FCJ No 1457 (QL) [Kotorri],
Justice Beaudry adopted Suleiman and found that it was an error in law
to elevate the threshold of persecution to atrocious and appalling.
[90]
Third, the applicant argues that the RAD failed
to adequately consider the nature of her past persecution, which the applicant
argues was, in any event, atrocious and appalling, and the psychological impact
and trauma she would experience if she were to return to Argentina.
[91]
Fourth, the applicant argues that the RAD erred
by failing to explain the factors it considered both for and against the
application of the compelling reasons exception, noting that in Adjibi v
Canada (Minister of Citizenship and Immigration), 2002 FCT 525 at para 33,
219 FTR 54 (FCTD) [Adjibi], Justice Dawson found that this was required.
The Respondent’s Submissions
[92]
The respondent acknowledges that there are two
lines of jurisprudence: one which is derived from Obstoj and focuses on
past persecution of an atrocious and appalling nature and another which is
derived from Suleiman and finds that compelling reasons include other
circumstances, including the applicant’s subjective trauma upon return, but still
requires a high threshold.
[93]
The respondent submits that the RAD considered
all the jurisprudence and did not err in noting that the compelling reasons
exception applies to a limited number of claimants and that the level of
persecution is a factor.
[94]
In its written argument, the respondent argued
that the RAD reasonably found that the applicant’s past persecution did not
reach the appalling and atrocious level. The respondent clarified this argument
in oral submissions and submits that the RAD did not find that only appalling
and atrocious persecution would constitute compelling reasons, but reasonably
found that the high threshold required had not been met, based on its consideration
of all the evidence.
[95]
The respondent also points to the jurisprudence
that confirms that it is a reviewable error to fail to consider subsection
108(4) only where the past persecution is exceptionally severe and rises to the
level of appalling or atrocious (Alharazim v Canada (Minister of Citizenship
and Immigration), 2010 FC 1044 at paras 49, 52, [2010] FCJ No 1519 (QL) [Alharazim]).
The RAD did not err in interpreting the compelling reasons
exception or in determining that compelling reasons had not been established
The RAD did not fetter its discretion
[96]
In Brovina v Canada (Minister of Citizenship
and Immigration), 2004 FC 635, [2004] FCJ No 771 (QL) [Brovina],
Justice Layden-Stevenson found:
[5] […] For the board to embark on a
compelling reasons analysis, it must first find that there was a valid refugee
(or protected person) claim and that the reasons for the claim have ceased to
exist (due to changed country conditions). It is only then that the Board
should consider whether the nature of the claimant’s experiences in the former
country were so appalling that he or she should not be expected to return and
put himself or herself under the protection of that state.
[97]
At para 6, Justice Layden-Stevenson emphasized
that: “In the absence of a finding of past persecution,
subsection 108(4) has no application.”
[98]
In the present case, the RAD found that the
applicant would have been a refugee in the past, but the reasons for refugee
protection have ceased to exist because, among other reasons, state protection
is now available and there is no credible evidence of an ongoing risk from
Juan. The RAD then embarked on the compelling reasons analysis.
[99]
The RAD did not fetter its discretion. The RAD
did not regard the level of past persecution, or whether it was appalling and
atrocious, as a condition precedent to undertaking the compelling reasons
analysis. Once the RAD found that the applicant would have been a Convention
refugee in the past, it readily embarked on its consideration of whether the
compelling reasons exception should apply.
[100] The issue in the present case is whether the RAD correctly
interpreted the compelling reasons exception, considered all the evidence and
reached a reasonable decision that compelling reasons had not been established.
The interpretation and application of subsection 108(4)
[101] There is a significant amount of jurisprudence regarding the
interpretation of subsection 108(4) and its predecessor. The statutory provision
is set out in Annex A.
[102] Two approaches have emerged in the jurisprudence, along with
additional distinctions and nuances within those approaches.
[103] The genesis of the reference to “appalling”
persecution is in Obstoj at 748 with respect to the predecessor to
subsection 108(4):
[…] It is hardly surprising, therefore, that
it should also be read as requiring Canadian authorities to give recognition of
refugee status on humanitarian grounds to this special and limited category of
persons, i.e. those who have suffered such appalling persecution that their
experience alone is a compelling reason not to return them, even though
they may no longer have any reason to fear further persecution.
The exceptional circumstances envisaged by
subsection 2(3) must surely apply to only a tiny minority of present day
claimants. I can think of no reason of principle, and counsel could suggest
none, why the success or failure of claims by such persons should depend upon
the purely fortuitous circumstance of whether they obtained recognition as a
refugee before or after conditions had changed in their country of origin. […]
[Emphasis added]
[104] Two principles emerge from Obstoj: first, the compelling
reasons exception is directed at a special and limited category; and, second,
those who have suffered appalling persecution would be within that category and
should be given refugee protection. The emphasis is clear that the compelling
reasons exception applies to only a “tiny minority of
present day complainants.”
[105] Some of the subsequent jurisprudence has found that Obstoj
does not require that the past persecution be appalling, rather that appalling
persecution constitutes a compelling reason and that the level of atrocity must
be considered. Other jurisprudence has adopted appalling and atrocious past
persecution as the threshold or level of persecution that should be established
to find compelling reasons.
[106] The RAD referred to several cases which pre-date Suleiman,
all of which refer to the exceptional nature of the provision and/or to appalling
and atrocious persecution.
[107] For example, in Brovina, the Court referred to the need to
consider whether the past experiences were “so
appalling” that the person should not be expected to return.
[108] In Shahid v Canada (Minister of Citizenship and Immigration),
[1995] FCJ No 251 (QL), 89 FTR 106 (FCTD) [Shahid], the Court noted the
duty to consider the level of atrocity, as well as the impact on the applicant’s
physical and mental state to determine whether an experience constituted compelling
reasons:
[25] It seems clear, having regard to Obstoj
and Hassan, supra, that the Board erred in construing ss. 2(3) as
requiring ongoing fear of persecution. The Board, once it embarked upon the
assessment of the applicant’s claim under ss. 2(3), had the duty to consider
the level of atrocity of the acts inflicted upon the applicant, the
repercussions upon his physical and mental state, and determine whether this
experience alone constituted a compelling reason not to return him to his
country of origin. That it failed to do. While I have serious doubt as to
whether the claimant can, in this instance, meet the high threshold established
by the case law, this is a matter for the Board to decide after consideration
of the relevant factors. The decision will accordingly be quashed, and the
matter will be returned for a new hearing before a differently constituted
tribunal.
[Emphasis added]
[109] In Isacko v Canada (Minister of Citizenship and Immigration),
2004 FC 890, [2004] FCJ No 1128 (QL) the Court also directs the decision maker
to consider the level of atrocity.
[110] In Lawani v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 1061 (QL) (FCTD), the Court found that a decision that past
persecution did not reach the appalling and atrocious level was not reasonable
and in Nwaozor v Canada (Minister of Citizenship and Immigration), 2001
FCT 517, [2001] FCJ No 840 (QL) (FCTD), the Court cited Obstoj and noted
the need to consider the level of atrocity.
[111] In Suleiman at paras 16-17, Justice Martineau rejected the
notion that past persecution must be atrocious and appalling to establish
compelling reasons, noting that a rigid test based on the level of atrocity
should be avoided and that establishing compelling reasons is a factual
determination based on all the evidence:
[16] It must not be forgotten that
subsection 108(4) of the Act refers only to “compelling reasons arising out of
previous persecution, torture, treatment or punishment”. It does not require a
determination that such acts or situation be “atrocious” and “appalling”.
Indeed, a variety of circumstances may trigger the application of the
“compelling reasons” exception. The issue is whether, considering the totality
of the situation, i.e. humanitarian grounds, unusual or exceptional circumstances,
it would be wrong to reject a claim or make a declaration that refugee
protection has ceased in the wake of a change of circumstances. “Compelling
reasons” are examined on a case-by-case basis. Each case is a “cas d'espèce”.
In practice, this means that each case must be assessed and decided on its own
merit, based on the totality of the evidence submitted by the claimants. As was
decided by the Federal Court of Appeal in Yamba v. Canada (Minister of
Citizenship and Immigration) (2000), 254 N.R. 388, at paragraph 6, in every
case in which the Board concludes that a claimant has suffered past
persecution, where there has been a change of country conditions to such an
extent as to eliminate the source of the claimant’s fear, the Board is
obligated to consider whether the evidence presented establishes the existence
of ‘compelling reasons”.
[112] The broader interpretation of the compelling reasons exception
endorsed by Justice Martineau also includes consideration of the trauma caused
by repatriation as a compelling reason (at paras 18-20); however, the
determinative issue was set out in para 21:
[21] […] In the case at bar, it is
apparent that the Board erred in inferring that the test in Obstoj
necessitates that the persecution reach a level to qualify it as “atrocious”
and “appalling” for the “compelling reasons” exception to apply. This error of
law vitiates the subsequent determination made by the Board that the applicants
are not Convention refugees.
[113] In Kotorri at para 27, Justice Beaudry adopted Suleiman
and found that the requirement of appalling and atrocious persecution “improperly elevated the threshold of persecution beyond what
is established by the case law.” However, Justice Beaudry referred only
to Elemah v Canada (Minister of Citizenship and Immigration), 2001 FCT
779, [2001] FCJ No 1123 (QL) (FCTD) and Suleiman. It appears that the
other jurisprudence which had continued to interpret Obstoj as setting
appalling and atrocious as the threshold was not raised.
[114] The RAD also noted jurisprudence post-Suleiman. In Shpati
v Canada (Minister of Citizenship and Immigration), 2007 FC 237, [2007] FCJ
No 387 (QL), Justice Snider found that the decision maker reasonably found that
the applicant’s past experience did not reach the level of appalling and
atrocious, noting that there was no basis to find that any evidence had been
ignored and that the Court’s role is not to re-weigh the evidence. Justice
Snider declined to consider the new argument raised at the hearing that
appalling and atrocious is too high a standard for subsection 108(4). However,
Justice Snider commented that the test set out in Obstoj “has been consistently in use since [Obstoj]”
(at para 13) and added, that apart from Dini v Canada (Minister of
Citizenship and Immigration), 2001 FCT 217, [2001] FCJ No 389 (QL) (FCTD)
and the question certified in that case, “there is no
jurisprudence that raises a doubt about the correctness of this test.”
The RAD noted this finding. Although Justice Snider referred to Kotorri
regarding the standard of review, it appears that it was not argued that Kotorri,
like Suleiman, had taken a different approach.
[115] The RAD also cited Lici v Canada (Minister of Citizenship and
Immigration), 2011 FC 1451 at para 21, [2011] FCJ No 1862 (QL), where
Justice Near noted that compelling reasons only apply in exceptional
circumstances and that the decision maker is entitled to weigh the evidence of
an applicant’s past persecution and determine whether past persecution reaches “the threshold of ‘atrocious and appalling.’” The RAD
also referred to Kostrzewa v Canada (Minister of Citizenship and
Immigration), 2012 FC 1449, [2012] FCJ No 1550 (QL), which noted the
appalling and atrocious standard, although that reference related to the RPD’s
failure to consider the exception, not whether compelling reasons had been
established.
[116] The respondent referred to Alharazim and other recent cases
which reflect the view that persecution should reach the level of appalling and
atrocious for a finding of compelling reasons.
[117] In Alharazim, Justice Crampton considered the past
jurisprudence and addressed two distinct issues: first, whether and in what
circumstances the decision maker is required to even consider the compelling
reasons exception; and, second, once the decision maker embarks on that assessment,
what must be established to find compelling reasons:
[49] Having regard to the foregoing, I
am satisfied that the class of situations in respect of which it may be a
reviewable error for decision-maker under the IRPA to fail to consider the
potential applicability of subsection 108(4) ought to be narrowly
circumscribed, to ensure that it only includes truly exceptional or
extraordinary situations. These will be situations in which there is prima
facie evidence of past persecution that is so exceptional in its severity
as to rise to the level of “appalling” or “atrocious.”
[50] I am mindful of the decisions in Elemah
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 779, at para.
28, and Suleiman v. Canada (Minister of Citizenship and Immigration),
2004 FC 1125, at paras. 16 - 21, which state that subsection 108(4) does not
require a determination that the severity of the claimed past persecution rose
to the level of being “atrocious” or “appalling,” before a positive finding may
be made under that subsection. Those cases both dealt with situations in which
the RPD conducted assessments under subsection 108(4) or its predecessor.
[51] I acknowledge that there may be
situations in which it may be possible to meet the requirements of subsection 108(4),
without the need to demonstrate past persecution that rises to the level of
having been “atrocious” or “appalling.” In keeping with the settled
jurisprudence established in Obstoj, above, and its progeny discussed
above, those situations must be truly exceptional or extraordinary, relative to
other cases in which refugee protection has been granted.
[52] However, for the purposes of
determining when it may be a reviewable error for a member of the RPD, an
Immigration Officer or another decision-maker under the IRPA to fail to
conduct an assessment under subsection 108(4), it is appropriate to define
a narrow category of situations in respect of which such an assessment is
required.
[53] Keeping in mind the insights
provided by paragraph 136 of the UN Handbook and the difficulty that would be
associated with attempting to identify, ex ante, exceptional situations
that do not involve severe past persecution, it is appropriate to confine
that category of situations to those that in which there is prima facie
evidence of “appalling” or “atrocious” past persecution. In those cases, a
decision-maker under the IRPA is required to perform an assessment under
subsection 108(4) of the IRPA. In all other cases, a decision-maker may
exercise discretion as to whether to perform such an assessment.
[Emphasis added]
[118] Justice Crampton distinguished the duty on the decision maker to
proactively consider the compelling reasons exception from the discretion the
decision maker has to consider the exception.
[119] With respect to whether the decision maker should even consider the
exception, Justice Crampton found that the RPD or RAD must consider whether
compelling reasons have been established only where there is prima facie
evidence of appalling and atrocious past persecution. In other cases, the RPD
or RPD may consider whether compelling reasons have been established.
[120] I note that this approach differs from that taken by the Federal
Court of Appeal in Yamba v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 457 (QL), 254 NR 388, where the Court found that the exception
should be considered in every case where there is a finding that there was past
persecution and the country conditions have changed. Justice Rennie noted this “tension” in Sabaratnam v Canada (Minister of
Citizenship and Immigration), 2012 FC 844 at para 18, [2012] FCJ No 959
(QL), but found that it did not affect that application. Similarly, the issue
does not arise in the present case; the RAD did consider whether compelling
reasons had been established.
[121] With respect to the threshold, if any, which applies to determine
whether, on the facts, compelling reasons have been established, Justice
Crampton acknowledged the interpretation in Suleiman. He noted (at para
51) that the requirements of subsection 108(4) may be met when past persecution
is not demonstrated to be appalling or atrocious, but highlighted that these
situations must be “truly exceptional or extraordinary”
relative to other cases.
[122] This is consistent with the underlying principle that the exception
applies to a “tiny minority” of refugee
claimants. This interpretation also seeks to reconcile the Obstoj and Suleiman
jurisprudence.
[123] Although the applicant would characterize Suleiman as the
correct test, other jurisprudence has more narrowly interpreted the compelling
reasons exception, highlighting that it is very exceptional and applies to a
limited category of claimants and that appalling and atrocious is the
appropriate threshold. Even Suleiman does not reject the principle that
the compelling reasons exception is for a “special and
limited category” and a “tiny minority”
of refugee claimants.
[124] Suleiman has been cited in other
jurisprudence, including with respect to the standard of review and the
consideration of the psychological impact, but I have not been directed to nor
found cases, other than Kotorri, that specifically reject the appalling
and atrocious level of persecution and find an error on the part of the
decision maker in applying that standard.
[125] The applicant argues that, at least implicitly, the RAD applied the
appalling and atrocious threshold given its references to the jurisprudence
which notes this standard and its finding that her persecution did not meet
that high threshold.
[126] I do not agree. The statutory provision requires that the applicant
establish compelling reasons arising out of her previous persecution that
justifies her refusal to avail herself of the state protection of her country
of origin. The RAD’s analysis took this into account.
[127] The RAD first identified its task as “to
establish whether the claimant’s particular case can be distinguished from
cases of persecution that do not fall under s.108(4),” noting that this
is a question of fact. The RAD then referred to the guidance from the case law
that has established that the compelling reasons exception is applicable in
exceptional circumstances. It also cited the jurisprudence that refers to
appalling and atrocious persecution. The RAD did not, however, limit its
consideration of compelling reasons to the narrower category of appalling and
atrocious persecution; the RAD considered whether the past persecution
described by the applicant, in comparison to other cases, reached the threshold
where the exception had and had not been established. Although several of those
cases refer to appalling persecution as the threshold, there is no error in
imposing a high threshold as all the jurisprudence consistently notes this
requirement.
[128] The RAD reasonably concluded, based on the weight it attached to the
evidence and in comparison to other cases where compelling reasons had not been
found, that the applicant had not established compelling reasons.
[129] However, if the RAD had imposed the atrocious and appalling
threshold, I would not find that it erred in law. The RAD cannot be faulted for
relying on the jurisprudence that reflects that the level of atrocity of past
persecution must be considered and the preponderance of the jurisprudence that
reflects that appalling and/or atrocious past persecution is the high threshold
required to establish compelling reasons. The RAD considered Suleiman;
however, since Suleiman and Kotorri were decided in 2004 and
2005, other jurisprudence has continued to refer to appalling and atrocious
past persecution to guide determinations of whether an applicant has established
compelling reasons.
The Psychologist’s Report
[130] The applicant also argues that the RAD failed to consider the
relevance of the psychologist’s report in its compelling reasons analysis,
particularly to the trauma she would experience if she returned to Argentina.
[131] I do not agree. The RAD referred to the report and did not dispute
the PTSD diagnosis. The RAD acknowledged that Suleiman speaks to the
issue of subjective trauma, but found that this does not obviate the need to
consider the level of the past persecution in assessing compelling reasons.
[132] Although the psychological impact of returning may be relevant to
the determination of whether compelling reasons have been established, Suleiman
does not establish that subjective trauma or the emotional impact on a refugee
claimant upon return would constitute a compelling reason, only that it is a
consideration.
[133] In Mwaura v Canada (Minister of Citizenship and Immigration),
2015 FC 874, [2015] FCJ No 889 (QL), Justice Brown considered the corollary and
noted that psychological harm is not necessary to establish compelling reasons
but that, if raised, there is no requirement to provide a psychological report
to establish compelling reasons, noting at para 17:
[17] This Court has rejected the
proposition that a precondition to a successful “compelling reasons” claim is
psychological harm. In Kotorri v Canada (Minister of Citizenship and
Immigration), 2005 FC 1195 at para 26 [Kotorri] the Court stated:
[26] I agree with the Board that
the evidence of continuing psychological after-[e]ffects is relevant to a
determination of the issue, but is not a separate test that has to be met
(Jiminez v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No.87 (F.C.T.D.) (QL) at paragraphs 32-34). Therefore, it is not because
a claimant suffers from post-traumatic stress disorder that the “compelling
reasons” exception will automatically apply. The Board must decide each case
based on the totality of the evidence.
[Emphasis added]
[134] In the present case, the RAD considered the psychologist’s report
and specifically cited the Immigration and Refugee Board's Convention Refugee
Definition Handbook, which notes that evidence of continuing psychological
after-effects, or the absence thereof, is relevant, but that such evidence is
not a separate test to be met to find compelling reasons. The RAD considered
the totality of the evidence. The weight attached to the evidence of
psychological after-effects was for the RAD to determine.
The RAD’s Reasons
[135] The applicant asks how her past persecution could not be found to be
appalling and atrocious, if that is the standard to be met to establish
compelling reasons. The Court cannot answer this question. The RAD is tasked
with this determination and the Court cannot re-weigh the evidence or substitute
another view where the RAD’s decision is within the range of acceptable
outcomes. The RAD considered the jurisprudence, interpreted the provision,
considered all the evidence, including the applicant’s BOC and Dr. Browne’s
report, and did not ignore or misconstrue any of it.
[136] The RAD did not dispute that the applicant was abused. Despite its
deference to the RPD’s credibility findings regarding the applicant’s
allegations of abuse, the RAD found that the abuse recounted was sufficient to
find that the applicant would have been a Convention refugee in the past, yet
found that the abuse did not meet the high threshold to establish compelling
reasons.
[137] The applicant’s argument that, based on Adjibi, the RAD erred
in not setting out the factors for and against the finding that she had not
established compelling reasons amounts to a request to the RAD to indicate the
specific weight attached to the evidence considered.
[138] In Adjibi, Justice Dawson considered the applicant’s
allegations of inadequate reasons for a finding of no compelling reasons and
found at para 33:
[33] [...] Meaningful reasons require
that a claimant and a reviewing court receive a sufficiently intelligible
explanation as to why persecutory treatment does not constitute compelling
reasons. This requires thorough consideration of the level of atrocity of the
acts inflicted upon the applicant, the effect upon the applicant’s physical and
mental state, and whether the experiences and their sequela constitute a
compelling reason not to return the applicant to his or her country of origin.
See: Shahid v. Canada (Minister of Citizenship and Immigration) (1995),
89 F.T.R. 106 (T.D.).
[139] I do not agree that Adjibi establishes a requirement for the
RPD or RAD to set out the factors for and against finding that compelling
reasons exist. Adjibi addressed the adequacy of the reasons. It does not
require the decision maker to tally the factors that support a finding of
compelling reasons and those that do not. That determination is based on the
totality of evidence.
[140] Moreover, as acknowledged by the applicant, the inadequacy of
reasons is no longer an independent ground for judicial review, but is part of
the determination of the reasonableness of the decision (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]).
[141] In accordance with Newfoundland Nurses at para 16 “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.”
[142] In the present case, the Court is able to determine whether the RAD’s
finding that compelling reasons had not been established is reasonable. The RAD
explained its understanding of the principles from the jurisprudence, that the
provision was limited to exceptional circumstances, that it considered all the
evidence and that it compared the applicant’s persecution to other cases of
persecution where compelling reasons were and were not found. The RAD found
that, on the facts before it, compelling reasons had not been established. The
RAD’s decision is intelligible, transparent and justified on the facts and the
law.
XI.
Proposed Certified Question
[143] The applicant requests that the question proposed but not certified
in Kotorri be certified in the present case to seek to clarify whether
appalling and atrocious past persecution is the threshold to establish
compelling reasons and how that threshold can be objectively measured.
[144] The test for certifying a question was established by the Federal
Court of Appeal in Canada (Minister of Citizenship and Immigration) v
Liyanagamage, [1994] FCJ No 1637, 51 ACWS (3d) 910 (FCA) at paragraph 4. The
question must be one which transcends the interest of the immediate parties to
the litigation and contemplates issues of broad significance of general
application and must be determinative of the appeal.
[145] More simply put, as reflected in subsequent cases, in order to be a
certified question the question must be a serious question of general
importance which would be dispositive of the appeal.
[146] Although the proposed question would transcend the interests of the
parties and clarity in the interpretation of subsection 108(4) would be
beneficial, certifying the proposed question would not be dispositive of the
appeal. As noted above, I do not find that the RAD imposed the threshold of
appalling and atrocious persecution and found that it had not been met. Rather,
it imposed a high threshold, as required by all the jurisprudence, and found
that based on the totality of the evidence, the applicant had not established
compelling reasons to exempt her from availing herself of the protection of
Argentina. As a result, the question will not be certified.
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