Docket: IMM-1321-16
Citation:
2017 FC 441
Toronto, Ontario May 2, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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MOHAMAD
NOUREDDINE AL MOUSSAWI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Mohamad Noureddine Al Moussawi (the
“Applicant”) seeks judicial review of the decision of the Immigration and
Refugee Board, Refugee Appeal Division (the “RAD”) dismissing his appeal from a
decision of the Refugee Protection Division (the “RPD”), refusing his claim for
protection pursuant to section 96 and subsection 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The Applicant is a citizen of Lebanon. He
entered Canada on November 29, 2013 and claimed protection on the grounds of
his public criticism of Hezbollah. The RPD dismissed the claim on the basis of
credibility, specifically the Applicant’s failure to seek asylum in Europe.
[3]
The RAD likewise dismissed the Applicant’s claim
on credibility grounds, saying that the evidence “suggests
that the Appellant has a clear pattern of not being truthful or forthcoming to
country officials”.
[4]
The Applicant now argues that the RAD erred in
assessing the psychological report that was submitted to the RPD. That report
addressed his inability to provide “coherent testimony”.
Neither the RPD nor the RAD made explicit credibility findings about that
report.
[5]
The Applicant submits that the RAD should have
analyzed his credibility against the contents of the psychological report.
[6]
The Applicant also argues that the RAD made an
erroneous finding of fact when it referred to a non-existent spousal
sponsorship application and submits that the result may have been different if
this mistake had not been made.
[7]
The Minister of Citizenship and Immigration (the
“Respondent”) argues that the RAD considered the psychological report and made
no fatal error in the weight it gave to it.
[8]
Although the RAD said the RPD erred in failing
to consider the report, the Respondent submits that such error was corrected
when the RAD considered the report.
[9]
The Respondent objects to the inclusion of
psychological reports by the Applicant about his mental status that were not
before the RPD or the RAD.
[10]
The first question to be addressed is the
standard of review, beginning with the standard of review to be applied by this
Court to the RAD.
[11]
The Federal Court of Appeal dealt with that issue
in its decision in Canada (Minister of Citizenship and Immigration v. Huruglica
(2016), 396 D.L.R. (4th) 527 at paragraph 35, where it said that the
appropriate standard of review for the Court to apply in reviewing a decision
of the RAD is reasonableness. According to the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47, a decision meets that
standard when it is intelligible, transparent, justifiable, and falls within a
range of acceptable outcomes defensible in respect of the facts and the law.
[12]
The second question for consideration is the
standard of review to be applied by the RAD upon an appeal from the RPD.
[13]
In a judicial review of a decision of the RAD,
the reviewing court must look at the standard of review applied by the RAD to
the RPD’s decision. The Federal Court of Appeal in Huruglica, supra at
paragraph 77 said:
… I find no indication in the wording of the
IRPA, read in the context of the legislative scheme and its objectives, that
supports the application of a standard of reasonableness or of palpable and
overriding error to RPD findings of fact or mixed fact and law.
[14]
According to the decision of the Supreme Court
of Canada in Dunsmuir, supra, there are generally only two
standards of review, that is reasonableness and correctness. If the standard of
reasonableness does not apply, only the standard of correctness remains to be
applied by the RAD in its review of certain issues before the RPD.
[15]
At paragraph 103, of Huruglica, supra,
the Federal Court of Appeal concluded:
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. …
[16]
In my opinion, the paragraph quoted above means
that the RAD must apply a correctness standard when reviewing decisions of the
RPD which do not raise issues of the credibility of oral evidence. Credibility
issues are subject to review on the standard of reasonableness.
[17]
The dispositive issue in this application is the
RAD’s negative credibility findings.
[18]
I have reviewed the Certified Tribunal Record
and the submissions of the parties, both written and oral.
[19]
The RAD’s negative credibility finding was open
to it. It falls within a range of “acceptable
outcomes.” The psychological report that was considered by the RAD did
not supplant the other evidence, including the Applicant’s testimony. The
decision meets the applicable standard of review, that is reasonableness.
[20]
Accordingly, this application for judicial
review is dismissed and no question for certification arises.
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