Docket: IMM-3133-16
Citation:
2017 FC 149
Ottawa, Ontario, February 8, 2017
PRESENT: The
Honourable Madam Justice Heneghan
|
BETWEEN:
|
|
MUDALIGE DON
HEWAGAMA MANIK MADAVA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Mr. Mudalige Don Hewagama Manik Madava (the
“Applicant”) seeks judicial review of the decision of the Immigration and
Refugee Board, Refugee Appeal Division (the “RAD”), dated June 28, 2016.
[2]
The RAD dismissed the Applicant’s appeal from
the negative determination of his refugee protection claim before the Refugee
Protection Division (the “RPD”). The RPD dismissed his claim on the basis of
negative credibility findings.
[3]
The Applicant is a citizen of Sri Lanka. He
claims to be at risk from the Sri Lankan Army Intelligence and Police, due to
his occupation as a journalist and a reporter. The RPD did not believe his
account about abduction and torture.
[4]
In his appeal to the RAD, the Applicant sought
to introduce new evidence and requested an oral hearing.
[5]
The RAD determined that the new evidence,
consisting of “updated country condition reports 2016”
and articles relating to failed asylum-seekers, did not meet the criteria of “new evidence” within the meaning of s. 110(4) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), and declined to
allow an oral hearing.
[6]
In its decision, the RAD reviewed the findings
of the RPD and confirmed all of the negative findings, concluding that the
Applicant was not credible. It confirmed the decision of the RPD and dismissed
the appeal.
[7]
The RAD referred to the decision of the Federal
Court of Appeal in Canada (Minister of Citizenship and Immigration) v.
Huruglica (2016), 396 D.L.R. (4th) 527 (F.C.A). It said the
following about its role in determining the Applicant’s appeal:
In Huruglica, the Court determined
that the RAD is to conduct a “hybrid appeal”. It is to review all aspects of
the RPD’s decision and come to an independent assessment of the Appellant’s
refuge claim, deferring to the RPD only where the lower tribunal enjoys a
particular advantage in reaching a conclusion. Where the RAD’s assessment
departs from that of the RPD, the RAD must substitute its own determination.
[8]
The Applicant now argues that the RAD committed
a reviewable error by failing to independently assess his claim, as required by
Huruglica, supra. He submits that the RAD merely endorsed the
findings of the RPD.
[9]
The Applicant also argues that the RAD erred by
failing to accept the “new objective country evidence”
as new evidence.
[10]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the RAD treated the decision of the RPD as one turning
upon the credibility of the Applicant, subject to review upon the standard of
reasonableness. He argues that the RAD carefully reviewed the negative
credibility findings of the RPD and found no error.
[11]
The Respondent argues that the RAD reasonably
excluded the new evidence because the evidence was available prior to the RPD
hearing.
[12]
The first question to be addressed is the
standard of review. I will begin with the first standard of review, that is the
standard of review to be applied by this Court to the RAD.
[13]
The appropriate standard of review for this
Court when reviewing a decision of the RAD is reasonableness; see Huruglica,
supra at paragraph 35. Accordingly, the Court should not interfere if
the RAD’s decision is intelligible, transparent, justifiable, and defensible in
respect of the facts and the law; see the decision in Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47.
[14]
Next, I refer to the second standard of review,
that is the standard of review to be applied by the RAD upon an appeal from the
RPD.
[15]
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.
[16]
According to the decision of the Supreme Court
of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 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.
[17]
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. …
[18]
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.
[19]
Upon considering the written and oral
submissions of the parties, I agree with the Applicant that in this case,
the RAD did not conduct its own assessment of the claim. Rather, it referred to
specific findings made by the RPD and simply endorsed those findings.
[20]
The RAD was too deferential. Its decision does
not clearly show that it exercised independent judgment. Such failure was found
to be an error in the decision in Khachatourian v. Canada (Minister of
Citizenship and Immigration), 2015 FC 182. In my opinion, the undue
deference by the RAD here is a reviewable error.
[21]
In these circumstances, it is not necessary for
me to deal with the remaining issue.
[22]
In the result, the application for judicial
review is allowed, the decision is set aside and the matter remitted to a
differently constituted panel for re-determination in accordance with the
Federal Court of Appeal decision in Huruglica, supra.
[23]
Counsel for the Applicant requested that I
certify the same question that was proposed for certification in Sinnaraja
v. Canada (Minister of Citizenship and Immigration), 2016 FC 778, that is:
Does the RAD owe
any degree of deference to the RPD's finding on credibility? If so, what degree
of deference?
[24]
Counsel for the Respondent opposes certification
of this question.
[25]
I agree with the submissions of the Respondent
on this point.
[26]
The error in the present proceeding does not
turn on the credibility of the Applicant’s oral evidence. The proposed question
for certification is not dispositive of this application for judicial review
and will not be certified.
Email this Content