Docket: IMM-331-16
Citation:
2016 FC 973
Ottawa, Ontario, August 26, 2016
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
TAJUDEEN MODUPE
OLUWAKEMI TAJUDEEN DAMILOLA YUSSUF
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicants, a mother and her child, are both
citizens of Nigeria. They made a claim for protection on the basis that they
have been accused of being witches, and as a result were being pursued by the
family of the principal Applicant’s husband and the police. The Refugee
Protection Division [RPD] rejected their claim on the basis of credibility and
on finding that there was an internal flight alternative [IFA] available to
them.
[2]
They appealed that decision to the Refugee
Appeal Division [RAD]. They filed new evidence and sought an oral hearing
before the RAD. The RAD accepted that the evidence filed was new within the
meaning of subsection 110(4) of the Immigration and Refugee Protection Act,
SC 2001, c 27 but declined to hold an oral hearing. Its interpretation of the
relevant sections of the Act was as follows:
When read together, Sections 110(3), (4) and
(6) establish that the RAD must not hold a hearing in an appeal such as this
unless there is new evidence, in which case the RAD may hold a hearing if that
new evidence raises a serious issue with respect to the credibility of the
Appellant, is central to the RPD’s decision, and that, if accepted would
justify allowing or rejecting the refugee protection claim.
The RAD finds that the new evidence admitted
in this appeal does not meet the test set out in 110(6) and as such, the RAD
must proceed without a hearing.
[3]
At the leave stage, the applicants represented
themselves and filed a brief memorandum of argument that suggests they had
assistance from someone with legal training or knowledge of immigration
jurisprudence.
[4]
At the oral hearing of this application, they
were represented by counsel. No further memorandum was filed. Counsel
advanced a number of submissions that were not reflected in the memorandum
before the Court. He did not advise counsel for the Minister beforehand that
he would be advancing these new submissions. I agree with the submission of
counsel for the Minister that this manner of proceeding takes the Minister by
surprise and is prejudicial. Had counsel not more than adequately addressed
these new submissions, I would not have given them any consideration.
[5]
The Applicants submit that the RAD in
this case was required to hold a hearing. They complain that the RAD
failed to offer any analysis as to why it was not required to hold a hearing
except for the observation quoted above, that “the new
evidence admitted in this appeal does not meet the test set out in 110(6).”
[6]
I agree with the Applicants that it would have
been helpful had the RAD explained in more detail why the test in subsection
110(6) was not met; however, it is clear from a full reading of the decision
that the RAD concurred with the view of the RPD as to the credibility of the
applicants. It also assigned very little weight to the “new” evidence and found that it was insufficient to
overcome the previous negative credibility finding. As such, the new evidence
which was accepted could not justify allowing the claim and the conditions in the
subsection had not been met.
[7]
In any event, as was pointed out by the
Minister, even when all the conditions of the subsection are met, the decision
as to whether to hold a hearing still remains within the discretion of the RAD
as the subsection provides that it “may” hold a
hearing in those circumstances. I do not find that it exercised its discretion
in an unreasonable manner.
[8]
The Applicants also submit that the RAD embarked
on an “unwarranted excursion based on speculation”
when it stated that the psychological report from Dr. Devins crossed “the line separating expert opinion from advocacy when it
advocates the granting of refugee status.” While Dr. Devins does not
use those words, a fair and reasonable reading of his opinion is that he is
indeed advocating that the principal Applicant be granted status. I find
nothing speculative in the discussion by the RAD. I too find that he crossed
the line.
[9]
The Minister correctly notes that in the written
memorandum, the Applicants do not challenge the IFA finding of the RAD and thus
must have accepted it. This finding alone, it was submitted, is dispositive of
the application. At the oral hearing counsel submitted that it was an
unreasonable finding because it ignored the “fact”
that the police are one of the agents of persecution.
[10]
That was one of the grounds of appeal to the RAD
– that the RPD erred in failing to observe that the police are agents of
persecution. The RAD deals with that submission at paragraphs 83 – 84 of its
reasons. It found that the allegation that the Applicants were being pursued
by the police was not credible. In my view, that was a reasonable finding
based on the record. In particular, the “Wanted
Poster” presented by the Applicants is close to a laughable attempt to
create the impression that the principal Applicant is sought by the police.
The RAD’s analysis of that document illustrates why:
[T]he wanted posters contained hand-written
insertions of the biographical information and photographs of the appellants
which had been pasted onto the document. … [T]he posters do not bear the
hallmarks of a genuine document and are inconsistent with the quality and style
of the police reports in Nigeria.
[11]
For these reasons, the application must be
dismissed as the decision of the RAD is reasonable and amply supported by the
record before it.
[12]
No question was proposed for certification.
Email this Content