Date: 20221013

Docket: IMM-6798-21

Citation: 2022 FC 1400

Ottawa, Ontario, October 13, 2022

PRESENT: The Honourable Madam Justice McVeigh

BETWEEN:

FAUSTIN MBOKOLA JOHN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Background

[1] The Applicant, Faustin Mbokola John, seeks judicial review of a decision by the Refugee Appeal Division (“RAD”) of the Immigration and Refugee Board (“IRB”), dismissing their appeal of a decision by the Refugee Protection Division (“RPD”).

[2] The Applicant is a 50 year old citizen of the Democratic Republic of the Congo. He arrived in Canada in late October 2018 by way of a visitor’s visa. Mr. John has remained in Canada since that time, where he sought asylum pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[3] The Applicant’s wife and children are in Tanzania. He has an Industrial Electrics Bachelor’s degree that he finished in July 1996. He had previously traveled to Canada in 2017 but he returned to Kenya in November 2017. In 2018, the Applicant travelled to the United States for three months and then returned to Kenya again. He travelled to Canada in October 2018 to make his refugee claim.

[4] Due to a visual impairment, both the RPD and RAD identified him as a vulnerable person pursuant to the IRB’s Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB [Guidelines]. A review of the evidence shows the Applicant did not make a request for any accommodations because of his visual impairment and none were given. The Applicant was represented by legal counsel before the RPD and RAD.

[5] From December 1996 until October of 2018, the Applicant resided in Kenya. While living in Kenya, the Applicant alleges he experienced harassment and raids on his home because of his non-Kenyan identity. Despite this, he remained in Kenya because he felt it was not safe for him to be in the Democratic Republic of Congo.

[6] In 2006, while residing in Kenya, the Applicant obtained a Kenyan identity and passport through bribery, which he disclosed in his Basis of Claim Narrative and at the initial hearing before the RPD. His Kenyan document uses an “alias”. The Applicant’s birth name is John Faustin Bokota Bakanga and his name on the Kenyan documents is Faustin Mbokola John. In the November 2019 Canada Border Services Agency interview, the Applicant presented a different name and date of birth. He continued to operate under an assumed identify for years.

[7] The Applicant put forth that he suffered hardship following the unsolved and suspected murder of his father in 1996. The Applicant’s family were living in Bunia in 1996 when his father, who was a doctor, disappeared and his body was found later under a bridge. Although there is no proof of who committed the murder, the Applicant suspects that political actors were behind his death.

[8] The Applicant believes his father was murdered because of his involvement with the Union for Democracy and Social Progress (“UDPS”), which is the current political party in power in the Democratic Republic of Congo. However, in 1996 the UDPS was not in power. The UDPS presently holds a power-sharing deal with the Common Front for the Congo (“FCC”), the prior governing party. The Applicant’s fears stem from his father’s death and political association through his family name, as well as a comment overheard by the Applicant at his father’s funeral saying “[t]his is just the beginning, we will finish them one by one.”

II. Issues

[9] The Applicant raised the following issues:

1. Whether the Applicant waived his right to raise the procedural defect and therefore cannot challenge the RAD’s decision on this ground.

2. Whether the issues raised by the Applicant can be properly considered by this Court.

3. Whether the RAD’s Decision is reasonable.

[10] I re-state the issues as:

1. On judicial review, can the Applicant raise arguments that were not made before the RPD or the RAD?

2. Was the RAD decision reasonable?

III. Standard of Review

[11] While the parties submit that the applicable standard of review in this case is reasonableness, a procedural fairness issue has been raised by the Applicant. In the event that the visual impairment may be considered for judicial determination, the applicable standard is correctness: see Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paragraph 54 [Canadian Pacific Railway].

[12] A court assessing a procedural fairness question is required to ask whether the procedure was fair having regard to all of the circumstances: Canadian Pacific Railway at paragraph 54. In Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at paragraph 35, Justice de Montigny said “[w]hat matters, at the end of the day, is whether or not procedural fairness has been met.”

[13] The applicable standard for the second issue is reasonableness. Reasonableness is the presumptive standard of review: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraph 30 [Vavilov]. There is nothing in these circumstances that requires a departure from this standard.

[14] A reasonable decision is one that is justified, transparent, and intelligible to the individuals subject to it. The reasons must reflect “an internally coherent and rational chain of analysis” when read as a whole, in light of the administrative setting, the record before the decision-maker, and the submissions of the parties (Vavilov at paras 81, 85, 91, 94-96, 99, 127-128).

IV. Analysis

A. Applicant’s Submissions

[15] The Applicant raises three issues that were not raised at the appeal below but he says that the Court can properly deal with them on judicial review. The Respondent strongly disagrees with the Applicant raising these issues for the first time on judicial review. The Respondent submits that the RAD’s decision must be assessed in the context of how the Applicant framed his appeal (Kanawati v Canada (MCI), 2020 FC 12 at para 23).

[16] First, the Applicant alleges the RAD erred by failing to take into account his vulnerable designation due to his visual impairment. Second, the Applicant argues that the RAD erred by mistaking the basis of his claim by focusing on the naming of an individual, rather than accepting the Applicant’s submission that it is the Democratic Republic of Congo government. Third, he alleges the RAD engaged in a mistaken analysis of country condition information.

[17] The Applicant argues that all of the issues raised are properly before this Court for consideration. In support of this, the Applicant relies on the legal principle of certification for a “serious question of general importance” (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC) at para 12 [Baker]). The Applicant submits that there is no substantive difference between the scope of issues to be addressed in an application for leave and judicial review and the scope of issues to be addressed in an appeal to the Federal Court of Appeal. In essence, this argument contends that, as in a certification question before the Federal Court of Appeal, all issues raised before the Federal Court are still open for consideration.

[18] The Applicant submits that the question for this Court to decide, is whether it was reasonable for the RAD not to notice the error when it was not pointed out by the Applicant on appeal. The Applicant alleges that the errors made by the RPD were so obvious that they should have been addressed by the RAD.

B. Can the Applicant Raise Arguments that were not Made Before the RPD or the RAD?

(1) Administrative Law Principles

[19] I disagree with the Applicant’s general arguments that raises new issues that were not before the RPD or RAD for the reasons cited by the Respondent. The RAD cannot be faulted for the failure to consider these issues when they were not raised before it or the RPD.

[20] Out of an abundance of caution, if I am wrong I will deal with each of the specific arguments below. These arguments are contrary to administrative law principles and because of their breadth are difficult to address legally. At best, these are reasonableness arguments, which do not grant the Applicant a de novo hearing.

(2) Visual Impairment

[21] The Applicant argues that the failure of the RAD and RPD to consider his visual impairment is unreasonable and procedurally unfair. The Applicant was found not credible because of a discrepancy between his father’s dates of death. In his testimony at the RPD he said his father died November 5, 1996. The RAD member then showed him his Schedule A immigration document where he said his father died on October 10, 2002. The RPD Officer asked him about the discrepancy and why a central element of his case had this inconsistency.

[22] The Applicant submitted that by failing to consider his visual impairment in his credibility assessment, the RAD acted unreasonably. Specifically, the Applicant says the failure to inquire into whether his visual impairment prevented him from seeing the written documents amounted to a breach in procedural fairness.

[23] In support of this argument, the Applicant relies on Yahya v Canada (Citizenship and Immigration), 2013 FC 1207. This Court found that it was reasonable to expect that the member would inform themselves as to how a diagnosis of memory problems would affect the applicant’s memory (at para 9). The Applicant also relies on the case of Woolner v Canada (Citizenship and Immigration), 2015 FC 590 at paragraph 47, where the court found a person with a schizoaffective disorder had not been given a meaningful opportunity to make observations to dispel the RPD’s doubts.

[24] The Applicant raises both procedural and substantive issues in his submissions on the vulnerable designation. I agree with the Respondent, however, that the Guidelines only entitles individuals to certain procedural accommodations. Section 5.1 explains:

General principles

5.1 A person may be identified as vulnerable, and procedural accommodations made, so that the person is not disadvantaged in the presentation of their case. The identification of vulnerability will usually be made at an early stage, before the IRB has considered all the evidence in the case and before an assessment of the person's credibility has been made.

[Emphasis added]

[25] The vulnerable designation matter raised by the Applicant is a procedural fairness consideration. At the hearing, the Applicant did not raise any procedural issues.

[26] Where a party fails to raise the procedural defect before the decision-maker, the party is assumed to have been satisfied with the matter: see Maritime Broadcasting System Ltd v Canadian Media Guild, 2014 FCA 59 at paragraph 68. If there is an existence of a procedural unfairness, it is incumbent on the party to register the objection with the decision-maker there and then: Chin v Canada, 2021 FCA 16 at paragraph 5 citing Irving Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116 at paragraph 48.

[27] Having reviewed the Certified Tribunal Record and the party records, there is no evidence that the Applicant raised the visual impairment issue at either the RAD or RPD. The Applicant has therefore waived the visual impairment issue and a breach of procedural fairness on the basis of his visual impairment it is not an available argument to make before this Court.

[28] The Applicant argues that the visual impairment is not a new issue because the RAD made a separate and independent designation. He submits that this means the visual impairment issue can be raised in this judicial review. Although it is true the RAD made a separate designation, the Applicant did not raise the visual impairment issue at the RAD or RPD. Waiver occurred at both the RAD and the RPD by virtue of the failure to raise any concern related to his visual impairment designation. This is especially so in light of the fact that the Applicant had counsel before both the RAD and RPD.

[29] Regardless, even if this Court could deal with this argument there is no procedural unfairness that occurred because of the visual impairment. The Applicant cannot simply argue that it should have been obvious to the RPD and RAD to inquire about the impact of his visual impairment on his father’s date of death. The RPD member did not have an obligation to speculate or ask further questions, especially when the inconsistency was put to the Applicant. The only explanation the Applicant offered was that there was a typo in the date. The document in question is a typed document, where any errors are corrected in pencil and the Applicant’s initials are beside the corrections.

[30] The transcript shows the Applicant had the opportunity to raise the procedural issue regarding his visual impairment:

COUNSEL: May I show that to the claimant, ma’am?

MEMBER: Yes, no problem.

COUNSEL: Okay.

MEMBER: It’s under Exhibit 1.

COUNSEL: Schedule A, question?

MEMBER: It’s number 4.

COUNSEL: Question 4.

MEMBER: Personal details.

COUNSEL: Question 4.

CLAIMANT: Yeah, Your Honour, I can see the document. I believe it was a typing error which we made here.

MEMBER: Okay. It’s a typing error in the month and the year as well that I’m noting. So it’s not just one of the two ---

CLAIMANT: Yes.

MEMBER: --- that has been a mistake.

CLAIMANT: Yeah. It was a typing error.

[31] At no time did the Applicant indicate he had any problem seeing the document and was definitive in explaining that it was just a typing mistake. The RPD member’s finding is reasonable, even if the Applicant had raised this issue before the RAD.

(3) Agents of Harm

[32] The Applicant submits another argument that was not before either the RPD or RAD; that he fears the Democratic Republic of Congo government but he cannot reasonably be expected to name everyone in government. He alleges that the failure of the RPD member to understand that there is not one feared agent of persecution but rather an entire government resulted in improper questioning and was unreasonable.

[33] The Applicant contends that the finding that the Applicant had evolving explanations for the omissions is unfounded because it resulted from improper questioning. The Applicant’s submission is that the problem is not the evolving explanation but the refusal of the RPD member to accept the original answer that was given by the Applicant.

[34] In support of this argument, the Applicant submits that there is no substantive difference between the scope of issues addressed in a judicial review compared to the scope of issues addressed in an appeal to the Federal Court of Appeal. Relying on Baker and Nunez Garcia v Canada (Citizenship and Immigration), 2019 FC 976, the Applicant states “all issues raised by the appeal” are open to consideration on a judicial review, similarly to an appeal on a certification question at the Federal Court of Appeal.

[35] I disagree. A reviewing court’s role in conducing a judicial review meaningfully differs from the role of an appellate court reviewing a below court’s decision. This is reflected in the different approaches to the standard of review: in a judicial review courts apply administrative law review standards, whereas reviewing courts use appellate review.

[36] This comparison fails because the purpose of a reviewing court in a judicial review is deferential to parliament’s intent and purpose. In conducting a judicial review, this Court must be mindful of the legislative intent, scheme, and purpose of the IRPA and the Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules]. In contrast, a reviewing court steps into the “shoes’ of the lower court”: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraph 46 citing Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at paragraph 247.

[37] The Respondent submits that s 3(3)(g) of the RAD Rules “makes it clear that it is the Applicant’s obligation, and not the RAD’s obligation, to identify errors made by the RPD and to make submissions accordingly.” I agree.

[38] In Canada (Minister of Citizenship and Immigration) v RK, 2016 FCA 272 at paragraph 6, the Federal Court of Appeal held that a decision of the RAD “cannot normally be impugned on the basis of an issue not put to it.” Adams v Canada (MCI), 2018 FC 524 at paragraph 28 [Adams], supports this proposition and demonstrates that appellants who fail to raise errors before the RAD do so at their own risk.

[39] The court may exercise its discretion on a judicial review application to hear an issue that was not raised before the tribunal, where it is appropriate to do so: see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paragraph 22 [Alberta Teachers’].

[40] This is not a circumstance that warrants an exercise of discretion in favour of the Applicant.

[41] I agree with the Respondent’s submission that allowing the Applicant to raise the agent of harm issue would undermine Parliament’s choice of the RAD as the first instance decision maker. Courts must be sensitive to the necessity of avoiding “undue interference with the discharge of administrative functions” where Parliament and legislatures have delegated such matters to administrative bodies: Alberta Teachers’ citing Legal Oil & Gas Ltd v Surface Rights Board, 2001 ABCA 160 at paragraph 12.

[42] Rule 57(1) of the RAD Rules states:

[43] This rule, and the legislative scheme of the Rules demonstrates the RAD’s designated role. The RAD was delegated the function of conducting its own analysis of the record to determine whether the RPD erred: Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at paragraph 103 [Huruglica]. The RAD should have been afforded the opportunity to adequately and wholly respond to the Applicant’s concerns on the agent of harm issue.

[44] Raising the agent of harm issue now is an attempt to circumvent the RAD’s role. The Applicant attempts to impugn the RAD’s decision on the basis of an issue not put to it and the issue raised by the Applicant now relates to the RAD’s specialized functions and expertise. The RAD would have been best suited to address the Applicant’s concerns regarding the agent of harm, as well as the RPD member’s questioning. Accordingly, the agent of harm issue is not properly before this Court.

(4) Country Condition Information

[45] The Applicant submits that the RAD and RPD made an unreasonable error by failing to understand the country condition in the Democratic Republic of Congo. This is because of the power sharing arrangement the current President made with the previous governing political party, the FCC. The Applicant argues that improvement in the human rights situation in the Democratic Republic of Congo does not mean the specific risk to the Applicant has diminished. He argues the RAD failed to engage with his specific factual circumstances and produced a “superficial boilerplate”, which is “largely oblivious to the situation” and amounts to a misreading of the country condition information.

[46] The Applicant submits that because the RAD raised the country condition information issue, it is proper to argue the error before this Court.

[47] This argument fails. Simply because both the RPD and RAD referenced the country condition documents does not mean the Applicant can raise a new argument on judicial review that was not put to the RAD. To do so amounts to a de novo hearing in effect, which is not available. In reality, the Applicant is questioning the reasonableness of the decision.

[48] Even if I heard the argument in this case, there was evidence the UDPS is now in power but there was only vague evidence that the FCC may have influence over the state security apparatus.

[49] As such, the country condition information issue is not properly advanced before this Court.

[50] Permitting review of issues “arising from errors that the applicant claims the RPD made which should have been so obvious” allows applicants to circumvent the role of the RAD. This commits the “end run” around the RAD that the Respondent argues against. The RAD’s appellate role in the legislative framework indicates its importance as a specialized decision-maker: the RAD is a “clear, authoritative, experienced review[er]” of RPD decisions (Huruglica at para 88).

[51] Regardless, the RAD adequately engaged with the country condition. The RAD agreed with the RPD that the Applicant failed to establish a personal connection to the Democratic Republic of Congo’s current country condition. To assess the personal connection, the RAD reviewed the evidence provided by the Applicant. The reasons show that the member reviewed the Democratic Republic of Congo’s ongoing political conditions and comprehended the implications of the current Presidency.

[52] It was open to the RAD to view the country condition information as it did. The RAD reviewed the objective evidence provided by the Applicant and noted the decline in political repression. The RAD concluded, based on the evidence, that the Applicant did not have a personalized risk. That is a reasonable view of the evidence provided.

[53] The country condition findings are not determinative of the RAD and RPD’s analysis. Rather, both the RPD and RAD found that the Applicant did not adduce evidence of a personalized risk. “… [U]nder both s. 96 and 97, an applicant must establish a risk that is both personal and objectively identifiable” (Debnath v Canada (MCI), 2018 FC 332 at para 35).

C. Was the Decision Reasonable?

[54] A review of the RAD’s decision demonstrates that it is reasonable. Below is a summary of the RAD’s findings.

[55] Credibility—date of father’s death: The RAD found that the typing error in the Applicant’s date of death was unsatisfactory. All components of the date were wrong: the day, the month, and the year. The RAD noted that the Applicant’s submissions did not support a typing error. This was a fundamental element of the Applicant’s claim because it was the triggering event.

[56] Credibility—identity of agent of harm: The RAD found the Applicant’s testimony about the identity of his agents of harm evolved during the hearing. The RAD also concluded the Applicant omitted any reference to his agents of harm in this Basis of Claim Narrative. The RPD did not err in finding that the omission was not satisfactorily explained.

[57] Credibility—forward-looking risk: The RAD agreed with the RPD that the Applicant did not adduce evidence of a personalized risk, or a risk by association with his father whose political involvement with UDPS was only at a local level over 25 years ago. The RAD also found that the objective evidence did not support the Applicant’s statement that “even people who are not truly part of the opposition are unjustly treated and wrongfully imprisoned.”

[58] Allegation of bias: There was no material evidence to support an allegation of bias. After reviewing the transcript, the RAD found the RPD was entitled to draw a negative credibility inferenced based on the Applicant’s testimony: the RPD did not err in finding inconsistencies about a material element of the Applicant’s claim. The bias argument has not subsequently been raised before this Court. Accordingly, I have not considered the RAD’s treatment of the bias issue further.

[59] The reasons of the RAD are justified in relation to the “constellation of law and facts that are relevant to the decision”: Vavilov at paragraph 105. The RAD was responsive to the original concerns raised by the Applicant. On each of the above determinations, the RAD’s reasons demonstrates internal coherence and a rational chain of analysis. The RAD decision is reasonable.

V. Certification Question

[60] The Applicant has raised a question for certification and the Respondent argued against certifying the question. The Applicant’s proposed question is:

Is an applicant for leave and judicial review of a decision of the Refugee Appeal Division limited to raising in Court the issues arising from the errors that the applicant, in the appeal to the Refugee Appeal Division, claimed that the Refugee Protection Division made? Or can the applicant also raise in Court issues arising from errors that the applicant claims the Refugee Protection Division made which should have been obvious to the Refugee Appeal Division, even if not raised by the applicant in the appeal to the Refugee Appeal Division?

[61] For the reasons that follow, I am declining to certify the proposed question. I find it does not meet the requirements for certification developed by the Federal Court of Appeal.

[62] Section 74(d) of the IRPA is a precondition to the right of appeal to the Federal Court of Appeal. Section 74(d) states:

[63] In determining whether there is a certification question, the test asks if there is a serious question of general importance and of broad significance that would be dispositive of the appeal and which transcends the interests of the parties to the litigation: see Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at paragraph 11 [Zazai].

[64] The question must not have already been determined and settled in another appeal (Huynh v Canada, [1995] 1 FC 633, 1994 CarswellNat 1444F at para 30). The question must also be dealt with by the Court and it must arise from the case; not the judge’s reasons (Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178 at para 16). Zazai explains:

[12] The corollary of the fact that a question must be dispositive of the appeal is that it must be a question which has been raised and dealt with in the decision below. Otherwise, the certified question is nothing more than a reference of a question to the Court of Appeal. If a question arises on the facts of a case before an applications judge, it is the judge's duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification.

[65] The certification question fails because it is not a dispositive issue in this case. Although the Applicant has attempted to characterize the question as a central issue in this judicial review, it is not material here. The Applicant’s arguments have been addressed and the Applicant’s question disposed of without needing to turn to this question.

[66] The question is not of general importance and can be answered by looking to the legislative scheme of the IRPA and the RAD Rules. The RAD’s role is clear: if errors are so obvious that the RAD should recognize them, so too should the Applicant and therefore raise them accordingly, pursuant to ss 57(1) of the RAD Rules. The onus is on applicants to identify and frame their appeals according to the issues they have identified: Adams at paragraphs 28-29.

[67] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223, dealt with a constitutional challenge that arose in relation to different sections of the IRPA but addressed the purpose and powers of the RAD. Justice Rennie, relying on Huruglica, summarized the former Chairman of the IRB’s statements regarding the purpose of the RAD:

[41] The legislative purpose behind the RAD’s implementation was discussed in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 F.C.R. 157 (Huruglica). In that case, this Court referred to the 2001 comments of the Minister responsible for Bill C-11, that “[t]he whole purpose [of the RAD] is to ensure that the correct decision is made” (at para. 87), as well as to those of Peter Showler, then Chair of the IRB, who stated that the RAD would “efficiently remedy errors made by the RPD” and act as a “safety net” (at para. 88). After reviewing the legislative history, this Court concluded that “[t]he RAD was essentially viewed as a safety net that would catch all mistakes made by the RPD, be it on the law or the facts” (at para. 98).

[Emphasis added]

[68] Allowing applicants to raise questions from the RPD that they view as obvious strips the RAD of its central purpose. This Court is not a safety net for the RPD and the Court’s function in reviewing RAD decisions should not be forgotten.

JUDGMENT IN IMM-6798-21

THIS COURT’S JUDGMENT is that:

1. This Judicial Review is dismissed;

2. The question presented for certification is not granted.

"Glennys L. McVeigh"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-6798-21
STYLE OF CAUSE:	FAUSTIN MBOKOLA JOHN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	HELD BY VIDEOCONFERENCE
DATE OF HEARING:	AUGUST 17, 2022
JUDGMENT AND reasons:	MCVEIGH J.
DATED:	october 13, 2022

APPEARANCES:

David Matas	For The Applicant
Rebecca Kunzman	For The Respondent

SOLICITORS OF RECORD:

David Matas Barrister and Solicitor Winnipeg, Manitoba	For The Applicant
Attorney General of Canada	For The Respondent

Winnipeg, Manitoba