Docket: IMM-6639-13
Citation:
2014 FC 1072
Ottawa, Ontario, November 14, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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ELJOT KURTZMALAJ
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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
I.
Overview
[1]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Protection Board found Mr. Eljot Kurtzmalaj, at the
time a 16 year old Albanian citizen, neither a Convention refugee nor a
person in need of protection as: i) although he had established his identity to
the satisfaction of the RPD, the fact that he had not filed his original
Albanian passport and birth certificate was found to undermine his overall
credibility; ii) he did not have a credible subjective fear of persecution in
Albania at the hands of his violent father; iii) in any case, he had an
internal flight alternative [IFA] in Tirana, the capital of Albania; and
finally, iv) state protection was available for the applicant in his own
country. The Refugee Appeal Division [RAD] applied the reasonableness standard
developed by the Supreme Court of Canada in the context of judicial review by
superior courts of justice, and found that the RPD made unreasonable errors,
namely, in issues i) and ii), but the RAD viewed the IFA analysis and finding
as reasonable. As such, the RAD found that it did not need to rule on the state
protection.
[2]
The only subject matter covered by this application
for judicial review is therefore whether an IFA is available for the applicant
in Tirana, Albania.
[3]
For the reasons discussed below, this
application for judicial review will be granted.
II.
Background
[4]
The applicant’s mother, father and brother live
in Albania. His uncle, Altin Malaj, was designated as his representative before
the RPD.
[5]
The applicant alleged before the RPD a
well-founded fear of persecution based on the risk of being abused or perhaps
killed by his alcoholic and violent father who often beat him and considered
him his property.
[6]
Three years prior to his refugee claim, the
applicant’s father began hitting and threatening him for trying to protect his
mother and brother from his father’s assaults. Moreover, his father forced the
applicant to work and would confiscate the money earned to buy himself alcohol.
[7]
As a result, the applicant absented himself from
school. One day, he showed up badly bruised, leading the principal and his
teacher to figure out his family situation. They asked to meet with his father,
who refused the invitation.
[8]
The applicant eventually decided to live at a
friend’s home, whose parents agreed to take him in. The friend’s family then
helped him leave the country, in part by obtaining a false Italian passport.
[9]
The applicant alleged that his friend’s parents
thought the police could not help him in any way. Instead of filing a complaint
with the country’s authorities, they helped him flee abroad. The applicant
consulted with several adults, and they all offered the same advice.
[10]
The applicant left for Canada where his uncle accepted to help him. He flew through the Netherlands and England, and arrived on January 16, 2013. He claimed refugee status two days later.
[11]
The RPD concluded that even if the applicant had
a credible fear, which in its view was not the case, he had an IFA in Tirana,
noting that he was able to obtain all the false documents he needed in order to
travel on his own to the Netherlands and Canada also that he was very mature
for his age and not physically challenged.
[12]
On May 2, 2013, the RPD informed the applicant
he was neither a Convention refugee nor a person in need of protection.
[13]
The applicant appealed to the RAD.
[14]
On July 22, 2013, the RAD confirmed the RPD’s
decision.
III.
The Impugned RAD’s IFA finding
[15]
The RAD analyzed the standard of review
applicable to the RPD decision. Invoking Newton v Criminal Trial Lawyers’
Association, 2010 ABCA 399 [Newton], it held that the RPD, as a
first instance tribunal, is owed deference, and thus found the grounds of
appeal had to be assessed on a reasonableness standard because the issues raised
questions of fact or of mixed fact of law. In its view, the RAD is not intended
to act as a de novo appeal board, but must review whether the RPD
decision falls within a range of possible outcomes, as understood by the
Supreme Court of Canada’s pronouncements in Dunsmuir v New Brunswick,
2008 SCC 9.
[16]
All four questions were assessed by the RAD
under the reasonableness standard as they were all questions of mixed fact and
law.
[17]
As indicated above, the determinative issue
before the RAD was the available IFA in Tirana. Here is how the RAD disposed of
the issue:
[73] Although I certainly would have
articulated these reasons differently, I feel that the RPD’s finding in
relation to the availability of an internal flight alternative falls within the
range of possible, acceptable outcomes that are defensible in respect of the
facts and the law. Consequently, the RPD did not err in applying the legal test
for an internal flight alternative to the circumstances of this case.
IV.
Issues and Standard of Review
[18]
This application for judicial review raises the
following issues:
1.
Does the RAD owe deference to the RPD’s
findings of fact or mixed fact and law?
2.
Is the RAD’s IFA analysis reasonable?
[19]
The applicant does not take a position on the
standard of review that this Court should apply when reviewing the RAD’s
selection of its own standard of intervention when sitting in appeal of the
RPD’s finding of fact or mixed fact and law.
[20]
The respondent argues that questions which
concern interpretation of a tribunal’s own statute and function are reviewable
on the reasonableness standard (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61).
[21]
The question of the RAD’s standard of
intervention is one that is closely tied to its function and process—matters
that require its high degree of expertise—which includes an interpretation of
its role as situated in the administrative structure set out by the home
statute. All of these factors suggest that deference is owed to the RAD’s decision
with respect to the selection of the appropriate standard of review.
[22]
Moreover, the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] contains a privative clause. Section
162 gives the RAD exclusive jurisdiction over all questions of law, fact and
jurisdiction. This section militates in favour of deference to the RAD on all
questions of law, regardless of how the applicant characterizes them.
[23]
For the reasons set out in Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063 (docket IMM-6640-13) [Akuffo],
heard the same day as this case and argued by the same counsel for the
applicant, I agree with the respondent.
[24]
In Akuffo, I found that in light of the
consistent and firm position taken by the Supreme Court (Nor-Man Regional
Health Authority Inc v Manitoba Association of Health Care Professionals,
2011 SCC 59; Communications, Energy and Paperworkers Union of Canada, Local
30 v Irving Pulp & Paper Ltd, 2013 SCC 34, [2013] 2 S.C.R. 458; McLean
v British Columbia (Securities Commission), 2013 SCC 67; and Canadian
National Railway Co v Canada (Attorney General), 2014 SCC 40), the
interpretation of sections 110, 111, 162 and 171 of the IRPA by the RAD did not
involve questions of central importance to the legal system as a whole or any
special circumstances that would require review on a correctness standard.
V.
Analysis
1.
Does the RAD owe deference to the RPD’s
findings of fact or mixed fact and law?
[25]
The parties do not agree which standard of
intervention the RAD must apply in appeal of RPD decisions on questions of fact
or mixed fact and law.
[26]
The applicant argues that the RAD should have
used the correctness standard. The RAD does not owe the RPD the same level of
deference as the Alberta Court of Appeal found in Newton. Newton
concerns the basic structure and interrelationship of the tribunals in Alberta
that review the conduct of police officers when that conduct is called into
question during disciplinary proceedings under the Police Act, RSA 2000,
c P-17. The initial investigation and prosecution of police misconduct is
performed within the police forces, by senior police officers. Appeals are then
available to the Law Enforcement Review Board, which is a civilian tribunal.
The Court of Appeal held that the court of first instance (the Presiding
Officer) has considerable expertise over the matter, more so than did the
appellate tribunal (Law Enforcement Review Board), which provides civilian
oversight. As such, the Presiding Officer’s greater expertise led to a greater
deference owed. The appellate tribunal cannot ignore the Presiding Officer’s
determinations and conduct in a de novo hearing, using the correctness
standard.
[27]
Meanwhile, the RPD and RAD are both divisions of
the same tribunal. Both possess specialized knowledge and skills with regard to
adjudicating refugee claims, therefore, there is no need for the RAD to defer
to the RPD.
[28]
It makes little or no sense to have the same
tribunal favour deference to itself. This defeats the purpose of having an
appeal decision at all.
[29]
The RAD should answer the same question
initially answered by the RPD: “Is the claimant a refugee or person in need of
protection?” It should not ask itself “Was the RPD’s decision reasonable?”
[30]
The respondent argues that an appellate
administrative tribunal should apply the reasonableness standard when reviewing
questions of fact or mixed fact and law from the decision of a lower tribunal. In
reviewing a decision of the RPD which concerns pure issues of law, the RAD should
use the correctness standard. Indeed, the enabling legislation, function of the
tribunal, and relevant jurisprudence, establish that the appropriate standard
of review on questions of fact and mixed fact and law is reasonableness.
[31]
The RPD is the trier of fact of first instance
and, as such, will have the benefit of seeing the claimant and witnesses. It
is, therefore, generally better placed than the RAD to assess factual and
evidentiary issues, although both are engaged in refugee determination. The RAD
must proceed without a hearing, on the basis of the RPD record of the
proceedings, but may accept documentary evidence and written submissions. As
such, it is primarily a “paper-based” appeal. The RPD is therefore better
placed than the RAD to assess factual and evidentiary issues except perhaps, in
exceptional instances where the RAD holds a hearing.
[32]
Since the case has been heard, this Court has
issued several decisions dealing with the same issues and questions of general
importance have been certified. Again, for a review of these decisions, I refer
the parties to my reasons in Akuffo.
[33]
After reasons were issued by this Court in Iyamuremye
v Canada (Minister of Citizenship and Immigration), 2014 FC 494; Garcia
Alvarez v Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng
v Canada (Minister of Citizenship and Immigration), 2014 FC 711;
and Huruglica v Canada (Minister of Citizenship and Immigration), 2014
FC 799, the parties requested and were granted permission to file additional
written submissions. In these submissions, the parties reasserted their
positions by citing some of the new jurisprudence particularly favourable to
their arguments. With a few caveats that have no impact on the case at bar, I
agree with Justice Phelan’s analysis of the role and duties of the RAD when
sitting in appeal of RPD decisions and when reviewing questions of fact or
mixed fact and law.
[34]
As for the RPD’s IFA finding, it did not turn on
the applicant’s credibility or on a question for which the RPD enjoyed a particular
advantage. Further, the RAD has equal expertise in assessing an IFA; thus, the
RAD owed no deference to the RPD on the issue and it was, in my respectful
view, necessary for it to review the relevant evidence and to formulate its own
opinion.
[35]
I am also of the view that the jurisprudence
concerning the standard of intervention applicable to appellate Courts does not
apply to the RAD any more than does the jurisprudence developed in the context
of judicial review by superior Courts. The rules of evidence employed by the
RPD are quite different, and far less restrictive, than those used by Courts of
justice. The evidence involved in the former is often limited to the testimony
of the claimant along with an abundance of documentary evidence; may it be
identity documents, letters from family members, psychological reports or
country conditions documents. In my view, the RPD does not enjoy a particular
advantage when reviewing such documentary evidence, even if they raise
questions of fact or questions of mixed fact and law. In addition, on all
issues normally raised before the RPD, the RAD has an equal or even greater
expertise to deal with them.
2.
Is the RAD’s IFA analysis reasonable?
[36]
In his written submissions to the RAD, the
applicant’s counsel directly contested the analysis by the RPD and referred to
the following relevant evidence on the record that contradicted the RPD’s
finding on this issue:
1.
There was no evidence the applicant had ever
stayed in Tirana;
2.
He knew nobody in Tirana;
3.
He wasn’t safe on his own in Tirana;
4.
He would receive no help or support in Tirana;
5.
He had nowhere else to go, except to his uncle
in Montréal;
6.
There are no social safety nets in Albania for
children or teens at risk;
7.
As a 16 year old child, he had few resources to
fall back on as far as money, skills or education to set himself up in a
different location.
[37]
The RAD ignored this evidence in upholding the
RPD’s finding. Instead, the RAD merely repeated the RPD’s analysis on this
issue. The RAD provided no explanation why it was reasonable for the RPD to
ignore evidence which suggested the applicant potentially faced undue hardship
if he were forced to relocate to Tirana.
[38]
It was unreasonable for the RAD to accept the
RPD’s decision at face value and ignore what could be relevant evidence
regarding the minor applicant’s personal circumstances. The failure to properly
assess the IFA analysis is a reviewable error.
[39]
All the more so, considering the RAD had at
least some reservations about the RPD’s analysis; yet it failed to note the
weaknesses.
VI.
Conclusion
[40]
Thus, in my view, the applicant was entitled to
benefit from a true appeal of the IFA finding, which he did not. His
application for judicial review will be granted.
*
* *
[41]
At the hearing, counsel for the applicant
suggested the following question for the purpose of certification:
•
What scope and role did the Parliament intend
the RAD to have over RPD decisions?
[42]
By letter to the Court, counsel for the
respondent opposed certification because the question is too broad and not
dispositive of the case. Counsel for the respondent also goes further and
suggests that, should the Court deem it appropriate to certify a question, it
should be the same question proposed to Justice Phelan in Huruglica.
[43]
I view the following question of general
importance as being determinative of the present application for judicial
review and I think it would also be determinative of an appeal:
•
Within the Refugee Appeal Division [RAD]’s
statutory framework where the appeal proceeds on the basis of the Refugee
Protection Division [RPD] record of the proceedings, what is the level of
deference, if any, owed by the RAD to the RPD’s findings of fact or mixed fact
and law?
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