Docket: IMM-3294-16
Citation:
2017 FC 278
Ottawa, Ontario, March 15, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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ANESHKUMAR
JEYASEELAN
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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]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act or IRPA], of an Immigration and Refugee Board of Canada Appeal
Division’s [RAD or Board] July 6, 2016 negative decision [Decision] confirming
the Refugee Protection Division [RPD]’s findings.
[2]
The Applicant is a twenty-four year-old male
citizen from Sri Lanka, who says that his father and two uncles were either
accused or suspected of having ties to the Liberation Tigers of Tamil Eelam
[LTTE], a militant organization fighting for the independence of the
northeastern region of the country.
[3]
The Applicant says he was assaulted in 2011. The
Applicant further alleges that in 2012, men came looking for him at his home. He
also says that in 2014 he was arrested, assaulted, beaten and warned that if
re-arrested, he may be killed.
[4]
The Applicant first fled to his grandmother’s
house, and then fled the country in February 2015 with the help of a smuggler, travelling
through the United Arab Emirates, Ecuador, Brazil, Panama, Peru, Colombia,
Mexico, and finally into the United States [U.S.], where he claimed asylum.
Although his application was found credible in a very early stage of the U.S.
process, he abandoned the claim when released from immigration-based detention,
and made his way to Canada on June 24, 2015. He claimed refugee status based on
ethnicity, nationality, political opinion, and membership in a particular
social group grounds.
[5]
The RPD rejected the claim on February 12, 2016,
drawing negative credibility findings based on:
1.
the Applicant’s failure to claim in Brazil and
Ecuador (which are Convention signatory countries);
2.
the Applicant’s election to abandon his U.S.
claim;
3.
discrepancies between his U.S. and Canadian claims
regarding the agents of persecution and events in Sri Lanka; and
4.
his profile that would not put him at risk upon
return.
[6]
The Applicant appealed to the RAD, which
dismissed the appeal on July 6, 2016, for reasons (as will be discussed below)
nearly identical to the RPD’s.
[7]
The RAD reviewed the Federal Court of Appeal’s
decision in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA
93 [Huruglica], explaining that a hybrid appeal is not a classic de
novo appeal: it must intervene when the RPD is wrong in fact, law and
questions of mixed fact and law, and deference is not owed, save with respect
to certain findings of credibility. In other words, the RAD does not start the
refugee determination anew; the RPD decision is not ignored.
[8]
The RAD made a number of findings, which
resulted in adverse inferences made against the Applicant’s credibility. Again,
these mirrored those of the RPD.
[9]
First, the RAD drew a negative inference against
the Applicant for not claiming refugee status in Convention signatory
countries, specifically Brazil and Ecuador, and for abandoning his claim in the
U.S.
[10]
Second, the RAD noted the discrepancies between
the Applicant’s American and Canadian claims, noting that the Applicant told
Canadian authorities that he had been detained by the Sri Lankan military in
2011 and 2014, while informing American officials that he had last been hurt by
the army in 2008. The Applicant explained that the discrepancies were due to
interpretation issues and the fact that the U.S. transcripts are not verbatim.
However, the RAD rejected these reasons and held that while they may explain
minor inconsistencies, they did not explain major ones.
[11]
The RAD further noted an important omission from
the Applicant’s Basis of Claim [BOC], which was included in the American
application: the Applicant failed to disclose shrapnel scarring on his ankle,
which was used by Sri Lankan authorities as a means to identify possible LTTE
members. Given the importance of this fact, the RAD said the omission cast
doubts on the veracity of the Applicant’s testimony. Furthermore, the RAD noted
that the Applicant told American authorities that in 2012, the army came
looking for him, and he thus fled his home to live with his grandmother, a fact
not included in his BOC. The RAD noted that even if the 2011 and 2014 arrests
were true, there was a three year gap with no arrests. Moreover, the RAD held
that if the Applicant was wanted by the State, it is doubtful that he would
have been able to pass checkpoints, since that he would likely have been on a
watch list, and would not have been able to leave the country using his
passport. Given the foregoing, also all noted by the RPD, the RAD rejected the
claim.
II.
Analysis
[12]
The Applicant raises one central issue in this
judicial review: the RAD failed to conduct an independent assessment of the
evidence, likening its role to that of a judicial review body. In other words,
the Applicant contends that the RAD -- while purporting to conduct a
correctness review and deferring to the RDP in matters of credibility where the
RPD enjoys a particular advantage -- did not independently assess the evidence.
Rather, he contends that the RAD simply endorsed the RPD’s findings.
[13]
The parties agree, as do I, that the RAD’s Decision
is reviewable on a standard of reasonableness (Huruglica at para 35).
The RAD may choose to show deference with respect to the RDP’s
credibility findings where the RPD enjoys a particular advantage, but should
apply a correctness standard review when reviewing the RPD’s findings of fact
or of mixed fact and law, “which do not involve an
issue of the credibility of oral evidence alone” (Sinnaraja v Canada
(Citizenship and Immigration), 2016 FC 778 at para 24 [Sinnaraja]).
[14]
In this case, the RAD concurred with the RPD’s
finding with respect to the Applicant’s abandonment of his claim in the U.S.
This part of the proceedings did not involve an issue of the credibility of
oral evidence alone. In other words, the RAD should have independently assessed
the subjective fear component of the claim.
[15]
Rather, the RAD’s ‘independent
analysis’ in the area of the subjective fear (relating to the third
country claims) consisted of assessing the jurisprudence brought to its
attention by the Applicant’s RAD counsel (which it uniformly distinguished),
and pointing to other case law (upon which it relied): Decision at paras 25-35.
This fell short of the exercise required: a contextual and independent analysis
– since it was in no worse a position than the RPD – in arriving at its own
determination whether the Applicant indeed lacked subjective fear, by failing
to claim in the U.S. and any other Convention signatory countries he transited through.
[16]
Subjective fear was a key finding in the
Decision, which the RAD placed before all others. It could thus well have tainted
the other findings. The Board needs to reconsider this point of subjective fear
to properly conduct its hybrid appeal.
[17]
More broadly, I am not satisfied that the RAD followed
the hybrid appeal approach required by Huruglica. At the outset of its Decision,
the RAD reiterated the correct guiding principles for its appeal (at para 18 of
its Decision): “the RAD will review all of the evidence
in the RPD’s record and come to its own independent assessment of whether the
Appellant is Convention refugee or a person in need of protection.” It
appears to me, looking at the totality of the Decision, that the RAD did not
truly follow through with this guiding principle. The Applicant argued that 69
references to or points of reliance placed on RPD findings, failed to
demonstrate an independent review. Some other places where the RAD did not
enjoy any advantage (other than the subjective fear analysis) included the
RAD’s agreement on all RPD findings with respect to persecution versus
discrimination, the agents thereof, and conclusions drawn from comparisons
between evidence from the RPD hearing, U.S. documentation, and BOC.
[18]
In response he Respondent argued, that that many
of the references were simply reporting what the RPD had stated or found: the fact
that the RAD concurred with the RPD’s findings does not in and of itself mean
that the principles established in Huruglica were not respected (Anel
v Canada (Citizenship and Immigration), 2016 FC 759 at para 26).
[19]
However, the Court has held that there must be a
point at which one can discern where deference to the RPD stops and where the
RAD’s independent analysis begins (Sinnaraja at para 27). An overly
obsequious support for and reinforcement of all RPD findings can bring into
question the independence of the RAD’s analysis.
[20]
The line between deference and independent
analysis can indeed be difficult to demarcate. Justice Noël had the following to
say about where that line was crossed, in Khachatourian v Canada (Citizenship
and Immigration), 2015 FC 182 at para 33 [Khachatourian]:
Throughout the decision, the RAD wrote “the
RPD found” (para 36), “the Member found” (paras 36, 42, 46, 49, 53, 60), “the
RPD determination” (para 37), “the Member’s review” (para 37), the “Member
refers” (para 38), the “Member notes” (para 38), “the Member carefully
reviewed” (para 39), “the Member discusses” (para 40), “the Member drew the
following conclusions” (para 43), “the conclusions drawn by the RPD Member”
(para 44), “the Member acknowledged” (para 46),“the Member provided” (Ibid), “the Member placed” (Ibid), “inconsistencies found by the
Member” (para 47), “the
Member reviewed” (Ibid),
“the Member concluded” (para 49), “the Member lists” (Ibid), “the Member noted” (para 52),
“the Member commented” (para 54), “the Member also stated” (Ibid) and “the Member’s findings” (para
61). This enunciation of the references to the reliance the RAD was showing
towards the RPD is by itself a clear indication of a high degree of deference.
It does not disclose the analysis that an appeal board should be doing in such
a situation. [Emphasis added]
[21]
While I am mindful that in Khachatourian,
the RAD explicitly stated that it had applied a reasonableness standard (at
para 14), which the RAD did not expressly do in the case at bar, I am of the
view that the RAD’s language mirrors that of Khachatourian. Such
language, when repeatedly employed by the RAD throughout its analysis of legal,
factual or mixed questions, does not reflect an independent assessment as
required by Huruglica, which, in turn, constitutes a reviewable error. I
can do no better than to repeat Justice Fothergill’s words in HAK v Canada
(Citizenship and Immigration), 2015 FC 1172 at para 18 [HAK]:
[…] the RAD stated its intention to conduct
its own assessment of the evidence and to determine independently whether the
Applicant is a Convention refugee or a person in need of protection. However,
it is not apparent from a review of the RAD’s decision that this approach was
followed in practice. Rather, it appears that the RAD applied the standard of
reasonableness to its review of many aspects of the RPD’s analysis [...]
[22]
Like in HAK, I am
unable to say whether an independent assessment of the Applicant’s claim would
have changed the outcome of the appeal before the RAD. However, an independent assessment
is required, and for the reasons provided, I am not satisfied that occurred.
Accordingly, this judicial review is granted.
III.
Certification
[23]
Applicant’s counsel submits the same question
for certification as he did in Sinnaraja, namely:
Does the RAD owe any degree of deference to
the RPD’s finding on credibility? If so, what degree of deference?
[24]
There are two reasons why this question need not
be certified. First, the Court of Appeal has spoken on the issue of deference
regarding credibility in Huruglica, stating at paragraph 74:
That said, it is not appropriate to say more
about the various scenarios that may arise, for they are not before us. The RAD
should be given the opportunity to develop its own jurisprudence in that
respect; there is thus no need for me to pigeon-hole the RAD to the level of
deference owed in each case.
[25]
As counsel pointed out, the RAD has committed to
addressing the issue, as noted in its “Notice -
Proceeding to be conducted before a Panel of three Members of the Refugee
Appeal Division” regarding File #TB6‑03419/20/21/22 (see:
http://www.irb-cisr.gc.ca/Eng/RefApp/Pages/notice3mempan.aspx) [Notice].
[26]
After citing the above-referenced paragraph 74
of Huruglica, the RAD writes in this Notice:
In the interest of developing a coherent
national jurisprudence, the Chairperson of the IRB has ordered that the appeal
before the RAD in this file be conducted before a panel of three members of the
RAD so that the RAD may determine its role in an appeal where the RPD’s
findings of fact (or mixed fact and law) involve an issue of credibility,
including determining what level of deference, if any, is owed to the
credibility findings made by the RPD.
[27]
Given these developments, it would be premature
and indeed inappropriate to certify this question.
[28]
Second, and equally important, the proposed
question is not dispositive of the outcome of this matter: I have found that
the RAD erred on points which, as explained above, the jurisprudence (including
post-Huruglica) has settled.
[29]
The Applicant has therefore failed to
established the test for certification set out in Zhang
v Canada (Citizenship and Immigration),
2013 FCA 168 at para 9. Accordingly, the question proposed by the Applicant
cannot be certified.
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