Docket: IMM-531-16
Citation:
2016 FC 1010
[ENGLISH
TRANSLATION]
Ottawa, Ontario, September 7, 2016
PRESENT: The Honourable
Mr. Justice Shore
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BETWEEN:
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SOPHEAKDEY YOU
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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
I.
Background
[1]
The Court must apply the standard of
reasonableness to the Refugee Appeal Division’s (RAD) findings regarding the
standard it should apply in relation to the appeal of the Refugee Protection
Division’s (RPD) decision (Canada (Citizenship and Immigration) v. Huruglica,
2016 FCA 93, at paragraph 35 [Huruglica, FCA]).
[2]
In Huruglica, FCA, at paragraph 103,
the Federal Court of Appeal clarified that the RAD must apply the correctness
standard to the RPD’s findings of fact, and those of mixed fact and law, for
which the RPD does not have a meaningful advantage over the RAD. The RAD
therefore “carries out its own analysis of the record
to determine whether, as submitted by the appellant, the RPD erred.” (Huruglica,
FCA, at paragraph 103).
[3]
It is not up to the Federal Court, but rather to
a specialized tribunal to ensure that allegations of intimidation, blackmail,
and the applicant’s perception are taken into consideration based on the
conditions of the country and the applicant’s perspective based on the inherent
logic coming from his background.
[9] We may well wonder whether this
judgment does not involve the imposition of Western concepts on a subtle
oriental totalitarianism and whether it is correct to interpret Chinese law
enforcement in light of the more linear Western model, when the social control
exercised by the Chinese state is omnipresent, through the co-opting of the
vigilance of its citizens generally. [TRANSLATION]
During oral argument, the respondent conceded that in none of the hundreds of
relevant cases this Court has heard in recent years, have the Chinese
authorities ever waited to arrest someone after a summons was delivered.
(Ye v. Canada (Minister of Citizenship
and Immigration), [1992] FCJ 584 (FCA))
[1] Each case has its own narrative.
Thus, its own story. Every nuance is important. Each has its own inherent
logic, not that of the Court but that of the applicant. If the story holds
according to its own logic, then it stands its test as being inherent to its
logic or coherence (this is for the first-instance decision-maker, the trier of
fact to decide.) Each story has its encyclopaedia of references, dictionary of
terms and gallery of portraits, even a background music to the story, whether
it is in harmony with the narrative or in a state of cacophony with it.
(Yakut v. Canada (Citizenship and
Immigration), 2010 FC 628
II.
Introduction
[4]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA) of the RAD’s decision to confirm the RPD’s decision that the
applicant is not a Convention refugee or a person in need of protection under
sections 96 and 97 of the IRPA.
III.
Facts
[5]
The applicant, Sopheakdey You (30 years
old), is a Cambodian citizen.
[6]
The applicant alleged the following facts to
support his refugee claim. While he was head cook in a restaurant in Phnom Penh,
his employer, Ek Vuthy, introduced him to a Canadian restaurant owner, who
apparently offered him a job in Canada. The Canadian restaurant owner made
arrangements and after the applicant received a visa in February 2011, he
arrived in Canada in March 2011. As soon as he arrived in Canada, the
restaurant owner confiscated his passport and forced him to work 14 hours
per day, six days a week, without wages, telling him that he had to repay
the cost of his trip to Canada and the fees for obtaining his visa. When the
applicant confronted the restaurant owner, he received death threats and was
told that he would be killed if he stopped working.
[7]
In December 2012, knowing that his visa was
going to expire, the applicant asked his employer about it. The employer
apparently told him to stop asking about his visa and passport, and said that
the visa had been renewed. In 2014, a co-worker who found himself in the
same situation as the applicant ran away from the restaurant and helped the
applicant find a lawyer. In November 2014, the applicant was able to get
his passport back after he promised his employer that he would continue working
and repay his debt.
[8]
The applicant’s refugee protection claim was
heard by the RPD on January 30, 2015, and February 13, 2015. In a
decision dated March 20, 2015, the RPD denied the applicant’s refugee
protection claim on the grounds of credibility. This decision was confirmed by
the RAD in a decision dated December 2, 2015.
[9]
In this judicial review, the applicant argues
that the RAD erred in its assessment of the applicant’s credibility because the
RAD did not have sufficient grounds for denying the applicant’s credibility,
and that the RAD exceeded its jurisdiction and breached its duty of procedural
fairness by bringing up a new reason without giving the applicant the
opportunity to explain. Moreover, the applicant argues that the RAD erred when
it found that a well-informed person would not conclude that there was not a
reasonable apprehension of bias on the part of the RPD member.
IV.
Issues in dispute
[10]
This application for judicial review raises the
following points:
1.
Did the RAD err in finding that there was not a
reasonable apprehension of bias on the part of the RPD member?
2.
Did the RAD err in confirming the RPD’s
credibility findings?
V.
Analysis
[11]
In the context of a judicial review of an RAD
decision, the Court must apply the standard of reasonableness to the RAD’s
credibility findings and the assessment of the evidence (Bikoko v. Canada
(Citizenship and Immigration), 2015 FC 1313, at paragraph 18).
[12]
The applicable standard of review for questions
of procedural fairness, such as allegations of bias, is that of correctness and
the RAD raised a new reason for denying the appeal without giving the applicant
the opportunity to provide an explanation (Mission Institution v. Khela,
2014 SCC 24; Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 SCR 339, 2009 SCC 12).
A.
Allegations of reasonable apprehension of bias
[13]
In Committee for Justice and Liberty et al.
v. National Energy Board et al., [1978] 1 SCR 369,
1976 CanLII 2 (SCC), the Supreme Court stated the applicable criteria
for determining whether there is actual bias or a reasonable apprehension of
bias:
The apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information,
According to the Court of Appeal, this criteria consists of asking "what
would an informed person, viewing the matter realistically and
practically—conclude?"
[14]
Allegations of an apprehension of bias must rest
on serious grounds, in light of the strong presumption of judicial impartiality
(Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45,
at paragraph 76). This type of allegation must not be made lightly because
a reasonable apprehension of bias calls into question not only the integrity of
the presiding judge, but of the administration of justice itself (R. v.
Teskey, [2007] 2 SCR 267, 2007 SCC 25, at paragraph 32).
[15]
The Court is of the opinion that a well-informed
person viewing the matter in-depth, realistically and practically would
conclude that there is no aspect of the record that would suggest that the RPD
showed the slightest appearance of bias.
[16]
It is true that the same RPD member heard and
denied the applicant’s co-worker’s refugee protection claim. However, the
member took the time to conduct an in-depth review of the record and did not
make a hasty decision. The applicant was in the courtroom for several hours.
[17]
Moreover, the RPD’s reasons for denying the
applicant’s claim differ in substance from those in his co-worker’s case. For
these reasons, the Court finds that the RPD member did not demonstrate what
could reasonably be considered bias because he conducted an in-depth and
independent review of the record before him. By so doing, the RPD could
correctly find that there was no reasonable apprehension of bias.
B.
Assessment of the applicant’s credibility
[18]
The Court must apply the standard of
reasonableness to the RAD findings regarding the standard it should apply in
relation to the appeal of the RPD’s decision (Huruglica, FCA, above, at
paragraph 35.
[19]
In Huruglica, FCA, at paragraph 103, the
Federal Court of Appeal clarified that the RAD must apply the correctness
standard to the RPD’s findings of fact, and those of mixed fact and law, for
which the RPD does not have a meaningful advantage over the RAD. The RAD
therefore “carries out its own analysis of the record
to determine whether, as submitted by the appellant, the RPD erred” (Huruglica,
FCA, at paragraph 103). The simple fact that the RAD chose to apply the
standard as stated in Huruglica v. Canada (Citizenship and Immigration),
2014 FC 799, instead of that set out in Huruglica, FCA, above,
does not mean that the RAD committed an error of law—to the extent that the RAD
conducted a thorough, comprehensive, and independent review (Gabila v.
Canada (Citizenship and Immigration), 2016 FC 574, at paragraph 20).
[20]
In this case, this is not what the RAD did. It
even erroneously specified that [translation]
“deference must be shown to [RPD] credibility
[findings]” (RAD decision, at paragraph 15).
[21]
The applicant argues that the RAD erred in
confirming the credibility findings of the RPD without reviewing the matter as
is its mandate, in other words, in keeping with the Federal Court of Appeal
decision in Huruglica, FCA, above.
[22]
It is not up to the Federal Court, but rather up
to a specialized tribunal, to ensure that allegations of intimidation,
blackmail, and the applicant’s perception be taken into consideration based on
the conditions of the country and the applicant’s perspective based on the
inherent logic coming from his background.
[9] We may well wonder whether this
judgment does not involve the imposition of Western concepts on a subtle
oriental totalitarianism and whether it is correct to interpret Chinese law
enforcement in light of the more linear Western model, when the social control
exercised by the Chinese state is omnipresent, through the co-opting of the
vigilance of its citizens generally. During oral argument, the respondent
conceded that in none of the hundreds of relevant cases this Court has heard in
recent years, have the Chinese authorities ever waited to arrest someone after
a summons was delivered.
(Ye v. Canada (Minister of Citizenship
and Immigration), [1992] FCJ 584 (FCA))
[1] Each case has its own narrative.
Thus, its own story. Every nuance is important. Each has its own inherent logic,
not that of the Court but that of the applicant. If the story holds according
to its own logic, then it stands its test as being inherent to its logic or
coherence (this is for the first-instance decision-maker, the trier of fact to
decide.) Each story has its encyclopaedia of references, dictionary of terms
and gallery of portraits, even a background music to the story, whether it is
in harmony with the narrative or in a state of cacophony with it.
(Yakut v. Canada (Citizenship and
Immigration), 2010 FC 628)
[23]
Moreover, the RAD found that it was [translation] “extremely
unlikely that the restaurant owner simply gave the applicant his passport.”
This finding by the RAD raised another point. The Court is therefore not
satisfied that the standard in Huruglica, FCA, above, for the applicant’s
purposes of fact and law, was observed and that the RAD’s implausibility
finding was based on the evidence on file.
[103] I conclude from my statutory
analysis that with respect to findings of fact (and mixed fact and law) such as
the one involved here, which raised no issue of credibility of oral evidence,
the RAD is to review RPD decisions applying the correctness standard. Thus,
after carefully considering the RPD decision, the RAD carries out its own
analysis of the record to determine whether, as submitted by the appellant, the
RPD erred. Having done this, the RAD is to provide a final determination,
either by confirming the RPD decision or setting it aside and substituting its
own determination of the merits of the refugee claim. It is only when the RAD
is of the opinion that it cannot provide such a final determination without
hearing the oral evidence presented to the RPD that the matter can be referred
back to the RPD for redetermination. No other interpretation of the relevant
statutory provisions is reasonable.
(Huruglica, FCA, above)
[7] A tribunal may make adverse
findings of credibility based on the implausibility of an applicant’s story
provided the inferences drawn can be reasonably said to exist. However, plausibility
findings should be made only in the clearest of cases, i.e., if the facts as
presented are outside the realm of what could reasonably be expected, or where
the documentary evidence demonstrates that the events could not have happened
in the manner asserted by the claimant. A tribunal must be careful when
rendering a decision based on a lack of plausibility because refugee claimants
come from diverse cultures, and actions which appear implausible when judged
from Canadian standards might be plausible when considered from within the
claimant’s milieu. [see L. Waldman, Immigration Law and Practice
(Markham, ON: Butterworths, 1992) at 8.22]
(Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776)
VI.
Conclusion
[24]
For the reasons set out above, the Court allows
the applicant’s application for judicial review.
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