Docket: IMM-3901-16
Citation:
2017 FC 433
Ottawa, Ontario, May 1, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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SHIROMI HETTI
ARACHCHILAGE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mrs. Shiromi Hetti Arachchilage,
is a citizen of Sri Lanka. In April 2011, she left her country of origin. She
first stayed in Israel for two years before coming to Canada in May 2013, after
obtaining a work permit to be employed in a seafood-packing plant. In March
2015, after becoming unemployed, she made a refugee claim, alleging that she
was in danger because both her husband, a soldier in the Sri Lankan army, and
the Sri Lankan authorities suspected her of supporting the Liberation Tigers of
Tamil Eelam [LTTE]. She claimed that she was a victim of domestic violence, had
been detained by the Sri Lankan army in 2011, and was threatened and sexually
assaulted while in detention.
[2]
In January 2016, Mrs. Arachchilage’s refugee
claim was denied by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board of Canada, as the RPD did not find Mrs. Arachchilage
credible. Mrs. Arachchilage appealed the RPD decision to the Refugee Appeal
Division [RAD]. In March 2016, the RAD confirmed the RPD decision and found
that Mrs. Arachchilage was not a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[3]
Mrs. Arachchilage has applied to this Court for
judicial review of the RAD’s decision. She argues that the decision is
unreasonable because the RAD erred in its treatment of the corroborative
evidence, in blindly adopting the RPD’s credibility findings and in failing to
apply the Immigration and Refugee Board’s Chairperson Guidelines on Women
Refugee Claimants Fearing Gender-Related Persecution [the Gender Guidelines].
She asks this Court to quash the RAD’s decision and to order that a different
panel reconsider her appeal of the RPD decision.
[4]
For the reasons that follow, I conclude that the
RAD’s decision is unreasonable as its treatment of one of the corroborative
evidence, namely a medical note relating to the sexual assault suffered by Mrs.
Arachchilage in 2011, was erroneous and ill-founded. While this was only one of
many elements considered by the RAD in its decision, it was so central to Mrs.
Arachchilage’s refugee claim that it suffices, in my opinion, to push its overall
conclusion beyond the range of possible, acceptable outcomes based on the facts
and the law, and to justify this Court’s intervention. I must, therefore, allow this application for judicial review and
send the matter back for redetermination.
[5]
Even though Mrs. Arachchilage presented other
issues in support of her challenge of the RAD’s decision, the RAD’s treatment
of the medical note is determinative and is therefore the sole issue that I
need to address in considering this application for judicial review.
II.
Background
A.
The RAD’s decision
[6]
In its decision, the RAD started by reviewing
the RPD’s decision and findings. As Mrs. Arachchilage claimed that the RPD
erred in its credibility finding and its assessment of corroborative evidence,
the RAD reviewed more specifically a Justice of the Peace’s letter from Sri
Lanka, a letter from Mrs. Arachchilage’s brother and a medical note.
[7]
The medical note came from a gynecologist at the
Nawaloka Hospital in Sri Lanka, and stated that Mrs. Arachchilage was “treated for sexual assault” in January 2011. In its
analysis, the RAD raised concerns with the fact that the note was written in
May 2015, whereas the sexual assault it referred to occurred in January 2011.
As the medical note simply briefly stated that Mrs. Arachchilage was treated
for sexual assault, the RAD found that a “physician
would treat for whatever was complained about”, and that the document did
not amount to actual evidence that Mrs. Arachchilage was sexually assaulted.
The RAD found that the medical note did not provide any detail as to who
assaulted Mrs. Arachchilage, or on “whether she actually
had been sexually assaulted or was only treated for sexual assault”. The
RAD thus found that the note had no probative value.
[8]
I add that the RAD also discussed the Gender
Guidelines in its reasons, as Mrs. Arachchilage claimed that the RPD had not
shown sensitivity in concluding that the events she described did not occur.
The RAD concluded that the RPD stated in clear terms why it did not believe Mrs.
Arachchilage’s allegations relating to her gender. The Gender Guidelines exist
to ensure that gender-based claims are heard with sensitivity, and the RAD
found that Mrs. Arachchilage failed to demonstrate how the RPD did not act in accordance
with them. The RAD observed that the Gender Guidelines do not shield a refugee
applicant from an assessment of her credibility.
[9]
Overall, the RAD concluded, further to its
independent assessment of the evidence, that the RPD decision was correct and
maintained it.
B.
The standard of review
[10]
It is now established law that the standard of
review to be applied by this Court to a decision of the RAD or the RPD on the
legal requirements under sections 96 and 97 of the IRPA is the deferential
standard of reasonableness, as the RAD is thereby interpreting and applying its
constituent statute with which it has particular familiarity (Basran
v Canada (Citizenship and Immigration), 2015 FC 1221 at para 19; Niyas v
Canada (Citizenship and Immigration), 2015 FC 878 at para 23; Ching v
Canada (Citizenship and Immigration), 2015 FC 725 at para 45). Since Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, the Supreme Court has repeatedly stated that “when an administrative tribunal interprets or applies its home
statute, there is a presumption that the standard of review applicable to its
decision is reasonableness” (Commission scolaire de Laval v Syndicat
de l’enseignement de la région de Laval, 2016 SCC 8 at para 32; Tervita
Corp v Canada (Commissioner of Competition), 2015 SCC 3 at para 35). This
is the case here.
[11]
Furthermore, assessing whether the RAD made a
proper assessment of the facts and of the evidence in finding that an applicant
is not a refugee is a mixed question of facts and law that also attracts the
standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at paras 47 and 53).
[12]
When reviewing a decision on the standard of
reasonableness, the analysis is concerned with the existence of justification,
transparency and intelligibility within the decision-making process, and the
decision-maker’s findings should not be disturbed unless the decision does not
fall “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir
at para 47). In conducting a reasonableness review of factual findings, it is
not this Court’s role to reweigh the evidence or the relative importance given
by the decision-maker to any relevant factor (Kanthasamy v Canada
(Citizenship and Immigration), 2014 FCA 113 [Kanthasamy] at para 99).
Under a reasonableness standard, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and in law, a reviewing court should not substitute its
own view of a preferable outcome (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16-17).
III.
Analysis
[13]
The determinative issue in Mrs. Archchilage’s
application for judicial review is the RAD’s treatment of the medical note. To
support her testimony that she was arrested and sexually assaulted by the Sri
Lankan army while in detention in 2011, Mrs. Arachchilage provided a medical report
from a gynecologist at the Nawaloka Hospital in Sri Lanka. In the note, the
physician indicated that Mrs. Arachchilage was hospitalized for four days in
January 2011 and “treated for sexual assault”.
The physician added that a “complete physical examination
was done”.
[14]
It is worth citing what the RAD actually said
about the medical note in its decision. The RAD wrote the following at para 13:
The RAD has problems with the probative value of this document. In
regards to being supportive evidence, it fails. It does not tell the RAD
whether or not the Appellant had actually been assaulted which is a big
difference from being “treated for sexual assault”. In any medical
facility, it would be reasonable that the physician would treat for whatever
was complained about. However, the actual report may have been more
forthcoming with detail based on the Appellant’s discussion at the time with
the doctor. This medical note does not provide any detail as to who
assaulted the Appellant, whether she actually had been sexually assaulted or
was only treated for sexual assault. The RAD is not finding that the
medical note lacks credibility but only that it has insufficient
information material to the claim, to have any probative value.
(emphasis added)
[15]
Mrs. Arachchilage argues that this treatment of
the medical note was unreasonable. Although the physician stated in the report
that Mrs. Arachchilage was “treated for sexual assault”,
the RAD faults the physician for not saying “whether or
not [Mrs. Arachchilage] had actually been assaulted which is a big difference
from being ‘treated for sexual assault’”. Mrs. Arachchilage claims that
this grossly minimizes her plight, and that it is completely unreasonable to
give little probative value to the document because it does not provide details
on her sexual assault. Mrs. Arachchilage also submits it makes a mockery of the
Gender Guidelines which the RAD failed to abide by. She adds that the RAD’s
assumption that she was treated for a fictitious assault is nonsensical and
offensive for her and for the medical professionals.
[16]
I agree.
[17]
I have several concerns with the RAD’s findings
on the medical note. First, it is trite law that documentary evidence must be
used based on what it does say, not on what it does not say. A decision-maker cannot draw a negative inference based on what a
document does not mention if the document is consistent with the testimony (Arslan
v Canada (Citizenship and Immigration), 2013 FC 252 at paras 87-88; Pantas
v Canada (Minister of Citizenship and Immigration), 2005 FC 64 at para
102). In addition, it is also well-recognized that, when medical issues come
into play, it is unreasonable to discard as unreliable a medical note
confirming some injury simply because it does not mention the cause of the
injury or who is responsible for it (Ismayilov v Canada (Citizenship and
Immigration), 2015 FC 1013 [Ismayilov] at para 10; Talukder v
Canada (Citizenship and Immigration), 2012 FC 658 [Talukder] at para
12). When asked at the oral hearing before the Court if she could direct the
Court to precedents stating the opposite of this line of cases, counsel for the
Minister could not point to any.
[18]
I observe that the RAD took special care to
mention in its decision that it was “not assessing what
the note does not say but [was] assessing how, what the note does say, may or
may not support the allegation”. I am not persuaded by this self-serving
statement. In fact, the paragraph of the RAD’s decision on the medical note
instead leaves the clear impression that the RAD did exactly what it says it did
not do. A plain reading of RAD’s discussion of the medical note reveals that
the RAD solely focused on what the note did not say: the RAD gave no probative
value to the document, as it found that the note did “not
provide any detail as to who assaulted” Mrs. Arachchilage, and it “does not tell the RAD whether or not [Mrs.
Arachchilage] had actually been assaulted” (emphasis added).
[19]
Second, it is also unreasonable to expect that a
medical report would go further to identify the perpetrator of an aggression or
give other details on the aggression. The information about whether Mrs.
Arachchilage was assaulted or who assaulted her could not have been witnessed
by the physician. In Talukder, Madame Justice Heneghan noted that “the doctor did not witness the beating and there was no
justification for diminishing the value of the note” because of the fact
that he “did not mention that the injury was the result
of a beating” (Talukder at para 12). In Ismayilov, Madame Justice
Mactavish similarly indicated that “[g]iven that it is
unlikely that the treating physicians were first-hand witnesses to his
mistreatment by the police, I question whether this [the fact that it does not
indicate who was responsible for his injury] was a valid reason for rejecting
the evidence, as any reference in the medical reports to the individuals
responsible for the injuries would likely have been based on hearsay reports by
Mr. Ismayilov himself” (Ismayilov at para 10).
[20]
But there is more. No matter how the medical
note is read, to conclude, as the RAD did, that the note “does not tell the RAD whether or not the Appellant had
actually been assaulted which is a big difference from being ‘treated for
sexual assault’” is simply beyond understanding. This interpretation is
an affront to both the evidence on the record and the basic common sense. Contrary
to the RAD’s allusion in its decision, the medical note did not simply state
that Mrs. Arachchilage complained about or consulted for a sexual assault; it
said that she was treated for it. If a physician reports that a person
has been treated for an injury, it is plainly illogical, in the absence of any
evidence pointing in that direction, to draw the inference that the injury did
not necessarily occur. Being treated for an injury necessarily implies
that an injury had occurred. Whether it is a sexual assault, a broken leg or a
heart pain, if a medical report refers to someone being treated for an injury,
no reasonable reading of such evidence can lead one to conclude that this person
did not actually experience or suffer from such injury. Furthermore, in this
case, there is no evidence disputing Mrs. Arachchilage’s testimony on the
occurrence of the sexual assault, and Mrs. Arachchilage was hospitalized for
four days.
[21]
In this case, the statement made by the RAD is
not just an unfortunate choice of words or mere slip of the tongue. In a short
paragraph of about ten lines, the comment was repeated twice, in the same blunt
language. Twice, the RAD stated explicitly that the medical note does not tell
the RAD whether or not [Mrs. Arachchilage] had actually been assaulted but only
that she had been “treated for sexual assault”.
In a context where Mrs. Arachchilage had directly referred to the sexual
assault in her testimony, where nothing in the evidence contradicted her
testimony on this specific point, and where this and the issue of domestic
violence were a central element of her refugee claim, the statement made by the
RAD suffices, in my view, to bring its decision beyond the scope of possible,
reasonable outcomes. However large the spectrum of possible, reasonable
outcomes or the margin of appreciation of the RAD can be, the RAD’s finding on
the medical note tumbles outside of it.
[22]
The RAD’s error is compounded by the fact that
it is reflective of a profound disregard for the Gender Guidelines in its
analysis of the medical note. It smacks of a flagrant ignorance of them. The
Gender Guidelines provide a framework in the context of gender-related
persecution where, for instance, sexual violence is alleged. Their purpose is “to ensure knowledgeable and sensitive consideration of the
evidence of women claiming refugee status because of violence within a
relationship” (Griffith v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1142 (QL) at para 3). They provide that when a
woman refugee claimant has suffered sexual violence, she “may require extremely sensitive handling”. As a
result, when a decision-maker lacks “the requisite
sensitivity”, it can be found that “the Gender
Guidelines were not properly applied” (Odia v Canada (Citizenship and
Immigration), 2014 FC 663 at para 9). While I agree with counsel for the
Minister that the Gender Guidelines do not call for a certain result, they
nonetheless call for a certain approach. By suggesting that being treated for
sexual assault leaves uncertain whether Mrs. Arachchilage was actually sexually
assaulted, the RAD’s conclusions remained oblivious to the teachings of the
Gender Guidelines.
[23]
Counsel for the Minister made a valiant effort
to argue that this finding of the RAD was only one element of its analysis and
that, when the decision is considered as a whole, this is insufficient, in any
event, to change the ultimate outcome and to render the decision unreasonable.
I disagree and do not subscribe to the Minister’s suggestion that the error
changes only one aspect of the numerous factors the RAD weighed in its assessment
of Mrs. Arachchilage’s refugee claim.
[24]
I acknowledge that, under a reasonableness standard, the reasons are to be read as a whole, in conjunction with the record, in order to
determine whether the reasons provide the justification, transparency and
intelligibility required of a reasonable decision (Dunsmuir at para 47; Agraira v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36 at paras 51-53). I also agree with counsel for the Minister that the Court must show a high
degree of deference to the RAD’s assessment of the evidence and to its weighing
of the various elements before it, given its specialized expertise in
immigration matters. However, while a reviewing court should resist the
temptation to intervene and usurp the specialized expertise that Parliament has
conferred to an administrative body like the RAD, it cannot show “blind reverence” to a decision-maker’s interpretation
(Dunsmuir at para 48). This is especially true when a conclusion on a
central element of a refugee claim is devoid of any support and of any logic,
as is the case here.
[25]
Under a reasonableness
review, it is the Court’s role to detect “irrationality
or arbitrariness of the sort that implicates our rule of law jurisdiction”, such as “the presence of
illogic or irrationality in the fact-finding process” or in the analysis, or the “making
of factual findings without any acceptable basis whatsoever” (Kanthasamy at para 99). This will normally be
exceptional but again, this is where the RAD’s findings on the medical note
regrettably fall in this case. Of course, a
decision-maker is not required to refer to each and
every detail supporting his or her conclusion. But the standard of
reasonableness also requires that the findings and overall conclusion of a
decision-maker withstand a somewhat probing examination (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 63).
Where parts of the evidence are misapprehended, where the findings do not
follow from the evidence and the outcome is not defensible, a decision will not
withstand such probing examination. To borrow the words of the Federal Court of
Appeal in Delios v Canada (Attorney General), 2015 FCA 117 at para 27,
the RAD’s decision bears a material “badge of
unreasonableness” with its erroneous finding on the medical note.
[26]
I am also very mindful of the fact that a judicial review is not a “line-by-line treasure
hunt for error” (Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34 at para 54), and that a reviewing court should approach the reasons with
a view to “understanding, not
to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Canada
(Minister of Citizenship and Immigration) v Ragupathy, 2006 FCA 151 at para
15). Reasonableness, not perfection, is the standard. However,
in this case, I do not even have to undertake any form of treasure hunting in
order to find the RAD’s error. The error is so patent that it jumps out of the
reasons and shines by itself in broad daylight. Limited though it may be, given
the central place that domestic violence and Mrs. Arachchilage’s sexual assault
occupied in her refugee claim, the RAD’s error was enough to infect the whole
decision and to render it unreasonable. This is therefore a situation which
strongly calls for this Court’s intervention.
[27]
I make one final observation. In MiningWatch
Canada v Canada (Fisheries and Oceans), 2010 SCC 2 [MiningWatch],
the Supreme Court mentioned that “the fact that an
appellant would otherwise be entitled to a remedy does not alter the fact that
the court has the power to exercise its discretion not to grant such a remedy,
or at least not the entire remedy sought”, when the error would not have
changed the result (MiningWatch at para 52). Even when a material error
is found, if the error could have made no difference in a decision, the Court
can decide to refuse to set it aside (Canada (Minister of Citizenship and
Immigration) v Patel, 2002 FCA 55 at para 13). However, the Court’s
discretion must be “exercised with the greatest care”,
and “balance of convenience considerations” must
be taken into account in the exercise of such discretion (MiningWatch at
para 52).
[28]
I do not find that this is a situation where I should
exercise my discretion to refuse to send the matter back for redetermination by
a different panel. True, the RAD analyzed various factors in Mrs.
Arachchilage’s refugee claim before upholding the RPD decision. However, its
error on the medical note was an error with regard to a key element, the sexual
assault at the core of Mrs. Arachchilage’s complaint. It is impossible for me
to determine whether, when the impact of the medical note will be properly
considered by the RAD, the balancing and weighing exercise of the evidence will
lead to a different conclusion on Mrs. Arachchilage’s refugee claim. This is an
assessment that the RAD, not this Court, must conduct and to which Mrs. Arachchilage
is entitled in the fair treatment of her appeal. It is possible that, informed
by these reasons of the error committed by the RAD and of the assessment that
should have been made of the medical note, another panel might nevertheless
come to a similar conclusion. However, this other panel might also come to another
conclusion favourable to Mrs. Arachchilage. I cannot say that the case leans so
heavily against granting Mrs. Arachchilage’s refugee claim that sending the matter
back would serve no useful purpose (Lemus v Canada (Citizenship and
Immigration), 2014 FCA 114 at para 38).
IV.
Conclusion
[29]
For these reasons, I conclude that the RAD’s
treatment of the medical note was unreasonable and brings the RAD’s decision
outside the range of possible, acceptable outcomes based on the facts and the
law. I must therefore allow this application for judicial review and order
another panel to reconsider Mrs. Arachchilage’s appeal.
[30]
Neither party has proposed a question of general
importance for me to certify. I agree there is none.
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