Docket: IMM-1609-15
Citation:
2015 FC 1361
Ottawa, Ontario, December 9, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the applicant applied
to be a Convention refugee or a person in need of protection. This was refused
by the Refugee Protection Division [RPD]. The decision was appealed to the
Refugee Appeal Division [RAD] pursuant to subsection 111(1) of the Act. His
request was refused. Pursuant to subsection 72(1) of the Act, he was granted
leave to apply for judicial review of the RAD decision.
I.
Background
[2]
The applicant is a married 33 year-old citizen
of Albania. He testifies that his family (Catholic) has been targeted by a
Muslim family in a vendetta, due to the applicant’s brother [the first brother]
engaging in an intimate relationship with a daughter of a Muslim family in
2007. At the time of the original declaration of vendetta, the first brother
fled with a second brother to Canada, where a third brother was already living
with his wife as refugees since 2001. The first and second brothers were
accepted as refugees on the grounds of the family vendetta. The applicant was
working in Italy at the time of these events and only returned to Albania in
2009, when his work visa expired. He married the same year. The family
residence, located in Durres, was sold in 2013.
[3]
The applicant claims that he lived in hiding
between 2007 and 2014 (when he came to Canada) and that the vendetta is still
alive. He alleges he received threats in April 2010 and September 2011. He also
states that between 2011 and 2014, he traveled multiple times to Italy and to
Greece and once to Germany, in attempts to find fake documents enabling him to
travel to Canada to reunite with his brothers in a safe country. He also
applied for a visa to travel to the United States, which was denied. He finally
arrived in Canada in March 2014 with a fake Italian passport; he immediately
made a refugee claim.
[4]
The RPD rejected his claim on June 24, 2014. The
applicant then appealed to the RAD. The RAD upheld the RPD decision on March 3,
2015. The RAD’s decision is presently under review.
II.
Decision under Review
[5]
The RAD confirmed that the applicant was neither
a refugee nor a person in need of protection. The decision was communicated to
the applicant on March 20, 2015.
[6]
The panel determined that the RAD owed deference
to the RPD’s findings where the RPD had an advantage in its assessing position,
stating that a reasonableness review was warranted.
[7]
The panel also concluded that the RPD did not
err in its assessment of the applicant’s credibility. The RAD found reasonable
the RPD’s conclusion that the applicant gave contradictory testimony, in light
of the recording of the interview.
[8]
The panel gave credence to the RPD’s finding
that the applicant’s repeated return to Albania after leaving the country led
to a negative credibility and subjective fear inference; the RAD found this
behaviour “impossible to explain”, thus
undermining the subjective fear element of the claim. The law is that
subjective fear is a required element for refugee claims and the RAD made no error
in finding that the applicant did not meet the requirement.
[9]
The panel stated that in order for the RAD to be
able to come to a different conclusion from the RPD in a case where there is a
negative credibility finding, there would need to be independent and credible
documentary proof capable of supporting a positive disposition of the claim.
The RAD then confirmed that in considering the totality of the evidence, the
attestation letter could not by itself provide an independent and credible
documentary proof capable of supporting a positive disposition of the claim, “because there were allegations that the office issuing such
attestations was corrupt.”
[10]
The RAD further found that the RPD had provided
sufficient reasons for its decision. The RAD found that it was reasonable for
the RPD to find the applicant not credible, because he did not seek asylum in
the countries he visited, because he was not satisfactorily answering questions
pertaining to the places he lived and because the documentary evidence was not
sufficient to overcome the negative credibility assessment.
III.
Issues
[11]
The applicant raises four issues:
1.
Did the RAD err in law by failing to determine
and apply the proper standard of review?
2.
Did the RAD err by merely recycling the RPD’s
erroneous conflation of credibility with subjective fear?
3.
Did the RAD err in failing to consider the
circumstances of similarly situated individuals?
4.
Did the RAD err in rejecting credible
independent evidence?
[12]
I would rephrase the issues as follows:
A.
What is the standard of review to be applied by
this Court when reviewing the RAD’s decision?
B.
Did the RAD err in its conduct of the appeal?
C.
Did the RAD properly conclude that the RPD made a
negative credibility finding?
D.
Was the RAD’s decision otherwise reasonable?
IV.
Applicant’s Written Submissions and Reply
[13]
The applicant argues that the appropriate appeal
to be conducted by the RAD is a hybrid appeal, as expressed in Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799 [Huruglica]
, with a new assessment on all issues, except on some aspects of credibility
determinations, where the RPD may have an advantage, as the RAD conducts no
oral hearing.
[14]
The applicant submits that the RAD failed to
conduct such an appeal and that this is sufficient to grant judicial review.
The applicant cites Ngandu v Canada (Minister of Citizenship and
Immigration), 2015 FC 423 at paragraph 11, which states: “the RAD commits an error when it applies a judicial review
standard while fulfilling its appellate functions”. The applicant further
provides a list of examples where the RAD used wording that demonstrates the
RAD incorrectly applied a standard of review to the appeal.
[15]
The applicant argues that the RAD ought to have
conducted its own independent assessment of the evidence, even for questions of
credibility.
[16]
The RAD failed to articulate credibility
findings in clear and unmistakable terms by conflating credibility with
subjective fear. The applicant submits that the RPD did not make clear
credibility findings, specifically when the RPD decision states that the
applicant’s brothers may have had a family vendetta declared against him and
his brothers, but that either the dispute no longer existed or the applicant
would no longer be at risk because of this dispute. These are inconsistent findings
that the RAD erred in adopting from the RPD. In fact, the RPD never clearly
stated that the applicant was not credible. Therefore, the RAD conflated the
subjective fear analysis with credibility when it stated that the RPD had made
a negative credibility finding with regard to the applicant.
[17]
The applicant also claims that the RAD and RPD
erred in giving so much importance to the information gleaned from the
interview, given the possible translation difficulties when the applicant was
questioned about his residence/home/where he lived for the period between his
return from Italy in 2009 and his departure for Canada in 2014. There are
reasonable explanations for the apparent confusion in this testimony; the
applicant did not attempt to mislead the RPD member when testifying.
[18]
The applicant further argues that the RPD and
the panel failed to consider risk to similarly situated individuals and
specifically failed to consider that his two brothers succeeded in their own
refugee claims based on the same events and on some of the same evidence; this
failure was unreasonable.
[19]
The applicant argues that the RAD should have
considered that he was part of a particular social group under section 96,
given he was part of a family targeted by a blood feud, but the tribunal did
not address this claim.
[20]
Finally, the applicant states that the RAD
failed to assess independent evidence, in this case the Pan-National
Reconciliation Committee’s attestation letters. Both the RPD and the RAD stated
that such letters could be forged or stem from a corrupt organization. However,
there was no evidence that this particular evidence was forged. Therefore, it
was unreasonable for the RAD to find, as the RPD did, that the third party
evidence could not support a positive determination, especially when some of
the same letter was used in support of positive determinations for two of the
other brothers.
[21]
In its reply to the respondent’s memorandum of argument,
the applicant further argues that the RAD conducted the wrong type of hybrid
appeal and therefore the credibility determination could not stand.
V.
Respondent’s Written Submissions
[22]
The respondent says that the standard of review
is reasonableness on the RAD’s interpretation of its own statute and its own
review of the RPD decision. The respondent argues that the question of the RAD
reviewing a standard of review based on reasonableness review or as an appeal
is not a true jurisdictional question, nor a question of law that is of central
importance to the legal system as a whole and outside the adjudicator’s
experience, nor is the determination outside the tribunal’s expertise.
[23]
The respondent further argues that the RAD’s
choice of standard of review was not material in this case, where the RPD found
that the applicant’s actions undermined the credibility of his subjective fear
claim. There is consensus that, on credibility issues based on evidence from
hearings, the RAD should defer to the RPD’s determination. Therefore, because
the determinative issue for this claim was credibility and there is no error in
the choice of standard of review, the Court should not grant judicial review.
[24]
The respondent replies to the applicant’s
contention that there was conflation of subjective fear and credibility. The
respondent claims that there was a clear credibility finding by the RAD at paragraphs
41 and 42 of its decision. The RPD and the RAD state that the applicant’s delay
in claiming refugee protection and his returns to Albania undermined his claim
of subjective fear. The RAD considered the applicant’s explanations for not
claiming refugee protection and found these to be unreasonable. On this basis,
it was open for the RAD to find the applicant lacked subjective fear and
credibility.
[25]
The respondent did not have any obligation to
consider the applicant’s brothers’ successful claims, which were assessed
independently. The key finding of the applicant’s lack of subjective fear means
the refugee claim has to fail.
[26]
The respondent states that blood feuds are not a
Convention ground to claim protection under section 96 of the Act.
[27]
The respondent states that third party evidence
was assessed, including the letter evidence, but that it was reasonably deemed
not to be credible. This finding was open to the RAD based on the record.
[28]
Finally, the respondent argues that the
translation difficulties experienced at the hearing were not raised before
reaching judicial review and was therefore too late. The applicant and his
counsel had a duty to raise any issue relating to the adequacy of translation
at the earliest convenience. The applicant only raises the issue on judicial
review, which is not the earliest opportunity. Therefore, the applicant raised
his right to challenge adequacy of interpretation.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review to be applied
by this Court when reviewing the RAD’s decision?
[29]
I am of the opinion that this Court should
review the RAD’s decision on a standard of correctness. The RAD’s decision
dealt with the proper standard of review to be applied by the RAD in its review
of the RPD decision. This is outside the area of expertise of the RAD.
(1)
The Standard of Review Applied by RAD in
Reviewing RPD Decision
[30]
My review of the RAD decision satisfies me that
the RAD applied the standard of reasonableness in its review of the RPD decision.
[31]
Section 111 of the Act gives the RAD the
following remedial powers:
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111. (1)
After considering the appeal, the Refugee Appeal Division shall make one of
the following decisions:
(a) confirm
the determination of the Refugee Protection Division;
(b) set aside the
determination and substitute a determination that, in its opinion, should
have been made; or
(c) refer
the matter to the Refugee Protection Division for re-determination, giving
the directions to the Refugee Protection Division that it considers
appropriate.
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111. (1) La
Section d’appel des réfugiés confirme la décision attaquée, casse la décision
et y substitue la décision qui aurait dû être rendue ou renvoie, conformément
à ses instructions, l’affaire à la Section de la protection des réfugiés.
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(2) The Refugee Appeal Division may make the referral described in
paragraph (1)(c) only if it is of the opinion that
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(2) Elle ne peut procéder au renvoi que si elle estime, à la fois
:
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(a) the decision of the Refugee Protection Division is wrong in law,
in fact or in mixed law and fact; and
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a) que la décision attaquée de la Section de la protection des
réfugiés est erronée en droit, en fait ou en droit et en fait;
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(b) it cannot make a decision under paragraph 111(1)(a) or (b)
without hearing evidence that was presented to the Refugee Protection
Division.
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b) qu’elle ne peut confirmer la décision attaquée ou casser la
décision et y substituer la décision qui aurait dû être rendue sans tenir une
nouvelle audience en vue du réexamen des éléments de preuve qui ont été
présentés à la Section de la protection des réfugiés.
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[32]
A review of these powers of RAD leads me to the
conclusion that the RAD was established to be an appeal body not a judicial
review body. It follows that a standard of review analysis is not the
appropriate approach for RAD to use when reviewing a RPD decision.
[33]
By way of example, subsection 111(b) of the Act
allows the RAD to set aside the RPD decision and substitute the determination
that it believes should have been made. This is an appellate role not a
judicial review role.
[34]
Additionally, if the RAD was only meant to
review the RPD decision, then there would have been no need to create it, as
the review could be done on judicial review by this Court.
[35]
Having already concluded that the Board made an
error reviewing the RPD’s decision on a standard of reasonableness, then how
should the RAD review the decision?
[36]
I have read the remarks of Mr. Justice Michael
Phelan in Huruglica where he stated at paragraphs 54 to 56:
54 Having concluded that the RAD
erred in reviewing the RPD’s decision on the standard of reasonableness, I have
further concluded that for the reasons above, the RAD is required to conduct a
hybrid appeal. It must review all aspects of the RPD’s decision and come to an
independent assessment of whether the claimant is a Convention refugee or a
person in need of protection. Where its assessment departs from that of the
RPD, the RAD must substitute its own decision.
55 In conducting its assessment, it
can recognize and respect the conclusion of the RPD on such issues as
credibility and/or where the RPD enjoys a particular advantage in reaching such
a conclusion but it is not restricted, as an appellate court is, to intervening
on facts only where there is a “palpable and overriding error”.
56 The RAD’s conclusion as to the
approach it should take in conducting an appeal is, with respect, in error. It
should have done more than address the decision from the perspective of
“reasonableness”. Therefore, the matter will have to be referred back.
[37]
I agree with his analysis of the type of review
to be carried out by the RAD of the RPD decision. As a result, I conclude that
the RAD made a reviewable error by applying the reasonableness standard in its
review of the RPD decision. The decision of the RAD must be set aside and the
matter referred back for redetermination by a different panel.
[38]
Because of my finding, I need not deal with the
remaining issues.
[39]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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