Docket: IMM-11882-23
Citation: 2024 FC 1905
Vancouver, British Columbia, November 27, 2024
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SIDDHARTH SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS AND JUDGMENT
[1] Mr. Siddharth Sharma (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”
), dismissing his appeal from the decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”
), whereby his claim for protection was dismissed.
[2] The Applicant is a citizen of India. He is Hindu. He sought protection in Canada on the basis of perceived danger from the family of a former romantic partner who is a Muslim woman, from a higher caste, and from the police.
[3] The RPD made a negative credibility finding about the Applicant’s evidence following “evolving”
evidence that followed a break in the hearing. However, it ultimately dismissed the claim on the grounds that an Internal Flight Alternative (”IFA”) is available to the Applicant.
[4] The RAD found that the RPD had erred in the manner in which it treated the issue of the Applicant’s credibility and so-called “evolving”
testimony. The RAD gave notice that it would consider the matter of credibility in the appeal and gave the Applicant the opportunity to make further submissions on the issue.
[5] The Applicant did not provide further submissions.
[6] The RAD, upon the basis of the record before it, including the transcript of the hearing before the RPD, confirmed the finding that an IFA is available to the Applicant and dismissed the appeal.
[7] The Applicant now argues that the RAD committed a breach of procedural fairness because in giving him the opportunity to address the issue of credibility, it did not precisely define the area of its concern. As well, he argues that the decision is unreasonable.
[8] The Minister of Citizenship and Immigration (the “Respondent”
) contends that the RAD adequately identified the issue of credibility for which the Applicant could make further submissions. The Applicant failed to make submissions and the RAD made its own conclusions, on the basis of the record before it.
[9] The Respondent further submits that the IFA finding is reasonable, in light of the evidence. He argues that the Applicant failed to produce sufficient evidence, documentary or otherwise, to establish his fear of persecution.
[10] Any issue of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339.
[11] Following the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, the merits of the decision are reviewable on the standard of reasonableness.
[12] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
;
see Vavilov, supra, at paragraph 99.
[13] I agree with the submissions of the Respondent upon the issue of procedural fairness. In my opinion, there was no breach of procedural fairness.
[14] The RAD gave the Applicant the opportunity to address the credibility findings made by the RPD. The Applicant did not accept that opportunity. The RAD was not obliged to give particulars about which aspects of the Applicant’s credibility were problematic.
[15] The Applicant has not identified any particular problems with the reasonableness of the RAD decision. The RAD, not the Court, is mandated to assess the evidence.
[16] It seems that the RAD did not find the Applicant’s evidence of risk to be credible. This finding is relevant to the test for an IFA, as set out by the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 at 710-711 (F.C.A.). The test is two-part and provides as follows:
[17] The first part of the test includes a subjective element that depends upon the presentation of credible evidence by an applicant.
[18] The RAD was not satisfied with the credibility of the Applicant’s testimony. This means that is was not satisfied that the Applicant met the first part of the test.
[19] In the result, I am not persuaded that the Applicant has shown any reviewable error in the decision of the RAD and this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT IN IMM-11882-23
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is dismissed.
2. There is no question for certification.
“E. Heneghan”
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