Docket: IMM-2594-16
Citation:
2016 FC 1371
Ottawa, Ontario, December 14, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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GJIN VUKAJ
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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]
Mr. Vukaj is a citizen of Albania. He sought protection
alleging that he is at risk as the result of an ongoing blood feud between his
family and a powerful and influential Albanian family.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada [RPD] rejected the claim finding that
Mr. Vukaj had failed to establish subjective fear and had not demonstrated that
the alleged blood feud was continuing. The RPD decision was upheld by the
Refugee Appeal Division [RAD]. The RAD decision was subsequently set aside by
this Court on judicial review on the basis that the RAD had erred in
identifying and applying the standard of review applicable to the RPD decision.
[3]
On redetermination, the RAD again dismissed the
appeal and confirmed the RPD decision. In considering the appeal, the RAD
admitted two pieces of new documentary evidence and conducted an oral hearing.
It concluded that the determinative issue was the credibility of the
allegations of risk. Based on the evidence heard in the course of the oral
hearing, the RAD did not believe that Mr. Vukaj’s and his family members are
currently victims of a blood feud. Mr. Vukaj argues that in reaching this
conclusion, the RAD erred and requests that this Court quash the decision and
return the matter for a second redetermination by a differently constituted panel.
[4]
Mr. Vukaj argues that while the RAD correctly
identified the standard of review to be applied in reviewing the RPD decision,
it erred in applying that standard of review. He further argues that the RAD’s
credibility determinations are problematic, that it erred in refusing to admit
documentary evidence and it failed to consider the successful refugee claims
advanced by his brothers on the basis of the same alleged blood feud.
[5]
I have considered the parties written and oral
submissions and have reviewed the complete record. In doing so, I have been
unable to identify the basis upon which the RAD concluded that “it is unnecessary for me to undertake an exhaustive analysis
of the RPD’s reasons for decision”. This issue is determinative and it
constitutes the only matter that I need address. The application is granted for
the reasons that follow.
II.
Standard of Review
[6]
There is no disagreement between the parties,
the applicable standard of review to be applied by this Court in reviewing the
RAD decision is reasonableness (Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 [Huruglica] at para
35).
[7]
A reviewing court will show deference to an
administrative decision-maker when that decision-maker is interpreting its home
statute (Canadian National Railway Co v Canada (Attorney General), 2014
SCC 40 at para 55). In the context of a judicial review, reasonableness is
concerned with justification, transparency and intelligibility in the
decision-making process and whether the decision is within a range of possible,
acceptable outcomes defensible in respect of the facts and law (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47).
III.
Analysis
[8]
The respondent argues that the RAD (1) identified
the RPD’s key concerns and (2) reasonably determined that a hearing was
appropriate in light of its decision to admit, as new evidence, a letter
written by Mr Vukaj’s wife. The respondent further submits that it was
reasonable for the RAD to conclude, as a result of the evidence provided by Mr.
Vukaj and his wife in the course of the hearing, that there were insurmountable
credibility difficulties that caused the member not to believe Mr. Vukaj’s
allegation of an ongoing blood feud involving a powerful Albanian family. I am
not persuaded by the respondent’s arguments.
[9]
In upholding the RPD decision, it is evident
that the RAD relied on its credibility findings arising out of the viva-voce
evidence provided by Mr. Vukaj and his wife. The applicant submits that this is
the sole basis for the RAD decision and, relying on the decision of the Federal
Court of Appeal in Huruglica, argues that this is contrary to the RAD’s
obligation to review the RPD decision to determine if there was a mistake in
law, in fact, or in fact and law. In this respect, the applicant has not argued
that the RAD was obligated to conduct a de novo hearing, as understood
by the respondent, but rather that the RAD was obligated to consider and
address the alleged RPD errors Mr. Vukaj identifies in his submissions.
[10]
The respondent submits that the RAD decision
indicates an awareness of the RPD concerns, and the basis of the RPD decision
is evident in the RAD’s factual overview. I also note that at the outset of its
analysis, the RAD stated that it undertook “an
independent review of the record” in addition to considering the
admissible new evidence and testimony it heard.
[11]
It is evident that the RAD engaged in a
comprehensive comparison between the proposed new evidence and the evidence that
was before the RPD. This may reasonably lead one to conclude, as the
respondent’s counsel argues, that this demonstrates a detailed understanding of
the record. However, the fact remains that the reasons do not demonstrate an
active consideration of the very issues Mr. Vulkaj raised on appeal. These
issues included an allegation that the RPD conflated subjective fear and
credibility, that independent evidence before the RPD was not assessed, and there
were translation errors that may have impacted the RPD’s understanding of some
evidence and that, in turn, led to unreasonable negative credibility findings.
[12]
While the RAD might well have considered each of
the alleged errors identified by Mr. Vukaj in its review of the facts and in
the course of addressing the new evidence, as argued by the respondent, this is
not reflected in the decision or the record. Instead, the RAD concludes that in
light of its negative credibility findings “it is
unnecessary for me to undertake an exhaustive analysis of the RPD’s reasons for
decision”.
[13]
Not undertaking an exhaustive analysis of the
RPD decision leaves open the question of whether or not the RAD did in fact
consider the issues raised on appeal. The RAD’s decision supports a variety of
conclusions in this regard (1) no errors were made by the RPD or (2) that any
errors that were made were insufficient to displace the RAD’s negative
credibility findings. However, one might also conclude that the RAD did not
undertake any further analysis and relied on its credibility finding to the
exclusion of all other evidence on the basis that the RAD’s “own findings arising from [its] analysis of the appellant’s
credibility at that hearing confirm the RPD’s decision to reject his refugee
protection claim”. In my view, this latter possibility is inconsistent
with the RAD’s role to carry out “its own analysis of
the record to determine whether, as submitted by the appellant, the RPD erred”
(Huruglica at para 103). Not addressing the issues raised on appeal
undermines the transparency, and in turn, the reasonableness of the decision.
[14]
I am mindful of the fact that “[r]easons may not include all the arguments, statutory
provisions, jurisprudence or other details the reviewing judge would have
preferred, but that does not impugn the validity of either the reasons or the
result under a reasonableness analysis” (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16). However, where reasons fail to clearly demonstrate a decision-maker’s
logic chain where various analytical paths may have been pursued and at least
one of those paths opens the door to a potentially different outcome, the
reasonableness of the decision is called into question and the Court may
intervene.
[15]
In this case it is not evident that the RAD
considered its credibility findings within the broader context of the alleged
RPD errors. This undermines the justifiability, transparency and
intelligibility of the RAD decision and renders it unreasonable.
IV.
Conclusion
[16]
The application is granted. The parties have not
identified a question of general importance, and none arises.
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