Docket: IMM-5986-13
Citation:
2015 FC 491
Toronto, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-5986-13
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BETWEEN:
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ABIEYUWA V. BRODRICK
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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 Applicant is a 36 year old woman from Nigeria who is seeking to escape domestic abuse at the hands of her husband. The Refugee
Protection Division [RPD] rejected her claims as a refugee and a person in need
of protection under section 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], on the basis that she had an
internal flight alternative [IFA] within the country. The Refugee Appeal
Division [RAD] upheld the RPD’s decision in accordance with section 111(1)(a),
which forms the basis of this judicial review.
II.
Facts
[2]
Ms. Brodrick operated a small business in Nigeria, buying and selling menswear. In January 2010, she first met her future husband. A
wealthy man, he spent lavishly on Ms. Brodrick and in March 2011, the two
married. Six months into the relationship, the Applicant’s mother-in-law moved
in with the couple at their Benin City home and their newly formed matrimony
began to sour.
[3]
The Applicant’s mother-in-law was abusive,
constantly checking to see if she was pregnant and verbally harassing her. The
Applicant became pregnant twice in 2011, but miscarried, for which her
mother-in-law blamed her. It was around this time that Ms. Brodrick’s husband
began to beat and sexually assault her. When she attempted to flee to her
father’s house, roughly an hour and a half from her home, her father brought
her back, as he did not believe in divorce. The Applicant also attempted to
stay with a friend in April 2012, but her husband tracked her down and harassed
her friend until she left with him.
[4]
In August 2012, while the Applicant was
pregnant, she was violently assaulted by her husband and mother-in-law and lost
the child as a result of her injuries. Her husband refused to take her to the
hospital.
[5]
Ms. Brodrick was assaulted again in November
2012, after her husband accused her of having an affair. She was knocked
unconscious by him, and later went to the police station to report the incident
with the support of her neighbour. The police declined to investigate the
matter, saying that in domestic relationships it “was
war today but peace tomorrow.” It was at this point that the Applicant
fled the country, with the assistance of a smuggling agent. The Applicant
arrived in Canada on January 19, 2013, where she made a claim for protection.
III.
The Decisions
[6]
On April 19, 2013, the RPD rejected Ms.
Brodrick’s claim for refugee protection. The determinative issue was her IFA in
the city of Abuja, Nigeria’s capital. The RPD relied on a United Kingdom Home
Office Country of Origin Information Report [UK Report] which states that the “sheer size of the country and its large population means
that it would be very difficult for a husband, or other family members, to
locate a woman who has escaped FGM [female genital mutilation], a forced
marriage or is a victim of domestic violence.”
[7]
The RPD also concluded that there was no
persuasive evidence that the Applicant’s husband or his family had searched
outside Benin City for her, or that he had the capacity to locate her in Abuja. The RPD further noted the existence of a women’s shelter, and other governmental
resources, such as counselling services, which could provide assistance to the
Applicant in Abuja.
[8]
The RPD determined that it would not be
unreasonable to expect the Applicant to relocate, because the Federal Capital Territory wherein Abuja is located is composed of roughly equal populations of
Christians and Muslims, so her religious identity as a Christian would not
endanger her safety. Further, the Board concluded that her previous experience
as a small business owner would enable her to sustain a livelihood upon
relocation.
[9]
The RAD reviewed the RPD’s decision on August
19, 2013 on a standard of reasonableness. It noted that the RPD had no
credibility concerns with Ms. Brodrick (Application Record [AR], p 20).
[10]
In its interpretation of sections 110(1), 110(2)
and 111(1) of IRPA, the RAD acknowledged that the standard of review for
its review of the RPD’s decision had not been specified in the legislation, and
primarily relied on Newton v Criminal Trial Lawyers’ Association, 2010
ABCA 399 [Newton], for guidance as to the factors which should be
considered by an appellate tribunal in deciding the standard of review for a
tribunal at first instance. These factors, as laid out by Justice Slatter in
paragraph 43 of Newton, include:
(a) the
respective roles of the tribunal of first instance and the appellate tribunal,
as determined by interpreting the enabling legislation;
(b) the nature of the question in
issue;
(c) the interpretation of the statute
as a whole;
(d) the
expertise and advantageous position of the tribunal of first instance, compared
to that of the appellate tribunal;
(e) the need to limit the number,
length and cost of appeals;
(f) preserving
the economy and integrity of the proceedings in the tribunal of first instance;
and
(g) other factors that are relevant
in the particular context.
[11]
After reviewing each of the Newton
factors, the RAD found that:
“In accordance with this deference, findings
of facts and findings of mixed law and fact are to be assessed on the basis of
reasonableness. Both the RPD and RAD are considered to have specialized
knowledge. Therefore, errors of law within the expertise or mandate of the
tribunals as well as questions of law of more general interest to the legal
system are to be reviewed for correctness.”
(AR, p 19-20)
[12]
The RAD summarized the RPD’s analysis of the
documentary evidence regarding Ms. Brodrick’s IFA, including its reference to
the UK Report noted above, as well as other evidence pointing to the operation
of domestic violence shelters and services in Abuja. The Applicant submits at
this Court that the documentary evidence indicates that these shelters are no
longer operational, and there is no evidence that other shelters have opened in
their stead (AR, p 101).
[13]
The RAD concluded that:
Deference is owed to the RPD in considering
whether the decision is reasonable. I find that even though the RPD did not
specifically refer to the matters outlined by the appellant, the RPD’s decision
is supported by the evidence and the issues raised by that portion of the
documentation were sufficiently canvassed through the oral testimony and
addressed in the reasons.
(AR, p 21)
[14]
It is unclear from the reasons as to how
thoroughly the RAD reviewed the documentary evidence the RPD relied on for its
IFA analysis, as the RAD’s reasons largely summarized the RPD’s reasons, as
opposed to quoting from the documentary evidence itself or conducting its own
analysis.
IV.
Analysis
[15]
Before engaging in the merits of this judicial
review, this Court must address the RAD’s selection of the standard of review
on which it chose to review the RPD’s decision. Firstly, this Court must decide
whether the selection of the standard by the RAD should be reviewed
deferentially. In other words, is the Court ultimately responsible for
selecting the standard (deciding whether it is one of correctness or
reasonableness) or is it the RAD’s prerogative to select its own standard
(which in this case was reasonableness), as long as that selection falls within
a range of reasonable options?
[16]
Having decided whether to review the RAD’s
selection of its standard of review on the basis of correctness or
reasonableness, if the Court chooses the latter, it must assess whether the
RAD’s approach falls within a range of reasonable options. A reasonable
decision is an acceptable and rational solution that is justifiable,
transparent and intelligible (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
[17]
In summary, the RAD’s selection of its standard
of review produces two basic questions:
1)
What is the standard of review this Court should
use in reviewing the RAD’s selection of the standard of review that the RAD
uses to assess the RPD’s decision?
2)
If the answer to the above is reasonableness,
was RAD’s decision to assess questions of mixed fact and law in the RPD’s
decision on a basis of reasonableness within the range of reasonable options
available to it?
[18]
Both of these questions have produced varying
answers in the Federal Court, resulting in several certified questions to the
Federal Court of Appeal (Huruglica v Canada (Citizenship and Immigration),
2014 FC 799 [Huruglica]; Triastcin v Canada (Citizenship and
Immigration), 2014 FC 975; Spasoja v Canada (Citizenship and Immigration)
2014 FC 913 [Spasoja]; Yetna v Canada (Citizenship and Immigration),
2014 FC 858 [Yetna]; Akuffo v Canada (Citizenship and Immigration),
2014 FC 1063 [Akuffo]; Nnah v Canada (Citizenship and
Immigration), 2015 FC 77). Higher Courts will ultimately provide a binding
resolution to the RAD’s institutional position on the standard of review, but
in the mean time, I am bound to provide a ruling on the matter at hand, and to
do so, rule on the questions raised in this judicial review.
[19]
It is my conclusion that in answer to the first
question, a review of the RAD’s decision should be undertaken by this Court on
the standard of reasonableness. On the second question, I find that, given the
RAD’s purpose in the scheme of the IRPA, its decision to review the RPD’s
findings of mixed fact and law on the basis of reasonableness was an
unreasonable one. I shall address the basis for these conclusions in turn.
A.
This Court’s Standard of Review of RAD Decisions
[20]
In my view, this Court should review the RAD’s
selection of its standard of review for reasonableness.
[21]
In Huruglica, Justice Phelan held that
the Court’s review should be conducted on a standard of correctness, as the
question is of general importance to the legal system that is “well beyond the scope of the RAD’s expertise, even though it
depends on the interpretation of the IRPA, the RAD’s home statute” (Huruglica at paras 26,
30). Other judges of this Court have found this reasoning persuasive (Yetna at
paras 14-15; Bahta v Canada (Citizenship and Immigration), 2014 FC 1245
at para 10 [Bahta]), including Justice Roy, who added that such a
question may also be described as a jurisdictional one between two specialized
tribunals, which further favours correctness review (Spasoja at para 8).
[22]
Justice Gagne diverted from the Huruglica
approach in Akuffo, wherein she stated:
[20] In other words, in order for this
Court to apply a correctness standard to an administrative tribunal’s
interpretation of its own statute, each criterion must be met: i) the question
of law has to be of central importance to the legal system as a whole; and ii)
the question of law has to fall outside the adjudicator’s expertise. Even if I
agreed with Justice Phelan that “the determination of the RAD’s standard of
intervention for an appeal of the RPD decision is outside its expertise and
experience”, the first part of the test still must be met in order for the
correctness standard to apply.
[23]
This countervailing approach, which I prefer, is
to review the RAD’s decision for reasonableness. The rationale and
jurisprudence supporting this deferential stance has been clarified by my
colleagues (Akuffo at paras 18-26; Djossou v Canada (Citizenship and Immigration), 2014 FC 1080 at paras 18-29), so I need only canvass it
briefly here.
[24]
I have my doubts as to whether the RAD’s
selection of its standard falls within one of the four categories of questions
for which the correctness standard continues to apply, namely (i)
constitutional questions, (ii) questions of law that are of central importance
to the legal system as a whole and that are outside the adjudicator’s
expertise, (iii) questions regarding the jurisdictional lines between two or
more competing specialized tribunals, and (iv) true questions of jurisdiction
or vires (Alberta (Information and Privacy Commissioner) v Alberta
Teachers' Association, 2011 SCC 61 at para 30 [Alberta Teachers]).
[25]
Indeed, in Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53 [Human Rights
Commission], a unanimous Supreme Court upheld the Canadian Human Rights
Tribunal’s conclusion that it had the authority to award costs, despite the
lack of any explicit language in its enabling statute allowing it to do so. The
Respondent argued that the Tribunal had no particular specialized expertise in
costs, to which the Justices Lebel and Cromwell responded:
[25] Although
the respondent submitted that a human rights tribunal has no particular
expertise in costs, care should be taken not to return to the
formalism of the earlier decisions that attributed “a jurisdiction-limiting
label, such as ‘statutory interpretation’ or ‘human rights’, to what is in
reality a function assigned and properly exercised under the enabling
legislation” by a tribunal … The inquiry of what costs were
incurred by the complainant as a result of a discriminatory practice is
inextricably intertwined with the Tribunal’s mandate and expertise to make
factual findings relating to discrimination…. As an administrative
body that makes such factual findings on a routine basis, the Tribunal is well
positioned to consider questions relating to appropriate compensation
under s. 53(2). In addition, a decision as to whether a particular
tribunal will grant a particular type of compensation — in this case,
legal costs — can hardly be said to be a question of central
importance for the Canadian legal system and outside the specialized expertise
of the adjudicator….
…..
[27] In summary, the issue of whether
legal costs may be included in the Tribunal’s compensation order is neither a
question of jurisdiction, nor a question of law of central importance to the
legal system as a whole and outside the Tribunal’s area of expertise within the
meaning of Dunsmuir. As such, the Tribunal’s decision to award legal costs
to the successful complainant is reviewable on the standard of reasonableness.
[Emphasis added]
[26]
I find it difficult to distinguish why the Human
Rights Tribunal’s interpretation of its ambiguous home statute with regard to a
remedy would be viewed on a standard of reasonableness, while the RAD’s
interpretation of its ambiguous home statute with regard the standard of review
would be judged on a standard of correctness. To classify the selection of a
standard of review as outside the expertise of the decision maker results in
the very “jurisdiction-limiting” labelling the Supreme Court cautioned
against in the passage cited above from Human Rights Commission.
Furthermore, it runs contrary to the presumption of deference owed to a
tribunal in the interpretation of its home statute (Alberta Teachers at
para 34).
[27]
Lastly, I note that while the Supreme Court of
Canada recently reviewed a question of law from a Tribunal on a standard of
correctness in Tervita Corp v Canada (Commissioner of Competition), 2015
SCC 3 [Tervita], the language of the enabling legislation in that case
mandated such an approach because the Competition Tribunal’s decision was to be
reviewed as if it were a judgment of the Federal Court , per section 13(1) of
the Competition Tribunal Act, RSC 1985, c 19 (2nd supp) (Tervita
at paras 38-39). As a result, the presumption of reasonableness was rebutted (Tervita
at para 35).
[28]
No such language exists with regard to the RAD
in IRPA. It should be noted, as an aside, that even considering the
statutory language, Justice Abella in Tervita dissented on the
majority’s selection of correctness as the standard of review, concluding that
“…notwithstanding legislative wording — when a tribunal is interpreting its
home statute, reasonableness applies” (Tervita at paras 170-171). In my
view, this serves to underscore the significance placed on the presumption of
reasonableness, and the high threshold required to rebut it.
[29]
In light of the jurisprudence above, I am of the
opinion that this Court should review the RAD’s selection of its standard of
review on the basis of reasonableness.
B.
The RAD’s Standard of Review
[30]
In assessing whether the RAD’s selection of its
standard was reasonable, the Court must evaluate whether its conclusion falls
within a range of acceptable and defensible options. This range is determined
by the context informing it, and can vary from a broad range of options to a
singular reasonable interpretation (McLean v British Columbia (Securities
Commission), 2013 SCC 67 at para 38; Attaran v Canada (Attorney General), 2015 FCA 37 at para 48).
[31]
There have been indications by the Federal Court
that the RAD should be deferential in its analysis of an RPD decision,
analyzing the lower decision for palpable and overriding errors in its factual
findings (Alvarez v Canada (Citizenship and Immigration), 2014 FC 702 at
para 28; Spasoja at para 40).
[32]
However, I am in agreement with several of my
colleagues in finding that the RAD erred by reviewing the RPD on a standard of
reasonableness (Huruglica at paras 54-55; Yetna at para 16; Khachaturian
v Canada (Citizenship and Immigration), 2015 FC 182 at para 30 [Khachatourian];
Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 at para 10; Akuffo
at para 39).
[33]
For the RAD to review the RPD on a basis of
reasonableness is a reviewable error because the RAD is not a judicial body. To
replicate a process of judicial review that this Court could then be required
to undertake cannot have been Parliament’s intention, as it would render the
Federal Court’s role duplicative (Bahta at para 11). Imposing a judicial
framework, as Justice Phelan ruled in Huruglica, is not consistent with
the administrative law principles animating the RAD’s functions, nor is it
compatible with the provisions of IRPA, particularly section 111(1)(b),
which enables the RAD to substitute its own factual findings upon review (Huruglica
at paras 44-47).
[34]
In my view, the scheme of IRPA, the
object of the Act and the intention of Parliament require the RAD to undergo
more than a review for reasonableness when assessing the factual findings of
the RPD (for instance, see the principle of statutory interpretation explained
in Imperial Oil v Jacques, 2014 SCC 66 at para 47). This does not
necessarily mean that the RAD must conduct its appeal de novo. Indeed, I
find great merit to Justice Phelan’s guidance in Huruglica as to how the
RAD should conduct its appeal:
[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”.
[35]
Given that the reviewable error in the RAD’s
adoption of reasonableness as its standard of review is dispositive of this
application (Khachatourian at para 39; Diarra v Canada (Citizenship
and Immigration), 2014 FC 1009 at para 29), I need not decide at this
juncture whether the hybrid approach described by Justice Phelan above would be
the only reasonable option available to it upon the proper interpretation of IRPA.
[36]
Rather than reviewing the RPD’s decision for
reasonableness, the RAD in this case should have undertaken its own review of
the documentary evidence. The RAD’s assessment of this evidence could have
impacted on its view on, among other things, whether there are adequate
domestic violence shelter facilities in Abuja, as this supported the RPD’s
finding that the Applicant had an IFA in that city. In any event, even if the
RAD had reviewed the documentary evidence, it provided no support for its conclusion
that a domestic shelter in Abuja, which the Applicant argued had been
shuttered, was not the shelter mentioned in the RPD decision.
[37]
Therefore, I allow this application and remit
the case to a newly constituted panel of the RAD for a reconsideration of the
appeal.
[38]
Since various questions regarding the RAD’s
standard of review have already been certified for disposition by the Federal
Court of Appeal, a further question would not be of utility as this time.
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