Docket: IMM-518-15
Citation:
2015 FC 1191
Toronto, Ontario, October 21, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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SHAYAN SHAHIDI
ROYA HAJISEYED
JAVADI
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Applicants
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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
[1]
The applicants are Iranian citizens who claim to
fear persecution in Iran because of their conversion to Christianity. The
Refugee Protection Division of the Immigration and Refugee Board dismissed
their claim for refugee protection on credibility grounds, and the RPD’s
decision was subsequently upheld by the Refugee Appeal Division.
[2]
The applicants seek judicial review of the RAD’s
decision, asserting that the RAD erred in deferring to the RPD’s credibility
findings. The applicants further submit that having found that the RPD
committed several errors in its assessment of their credibility, the RAD’s
decision to uphold the RPD’s decision was unreasonable. The applicants also
contend that they were denied a fair hearing of their refugee claim as the RPD
was over-zealous in its assessing their credibility in order to reach its
desired result, and that the RAD erred in failing to recognize this fact.
Finally, the applicants say that the RAD erred by failing to have regard to the
sur place nature of
their refugee claim.
[3]
For the reasons that follow, I have not been
persuaded that the RAD erred as alleged. Consequently, the application for
judicial review will be dismissed.
I.
The Standard of Review Applied by the RAD
[4]
While recognizing that the law on this issue is
not yet settled, the RAD stated that it would apply the standard of review
identified by this Court in Huruglica v. Canada (Minister of Citizenship and
Immigration), 2014 FC 799, [2014] 4 F.C.R. 81. The Court held in Huruglica
that it was an error for the RAD to apply the reasonableness standard when
reviewing decisions of the Refugee Protection Division, as if it were
conducting a judicial review of the RPD’s decision. The RAD should instead function
as an appellate body, and conduct a “hybrid appeal”
in which it reviews all aspects of the RPD’s decision and comes to its own
conclusion based on the evidence. The RAD should defer to the RPD’s findings
only where the RPD enjoys a particular advantage in making a determination,
such as assessments of credibility.
[5]
While the applicants generally accept the
standard of review identified in Huruglica, they take issue with the
notion that the RAD should ever defer to findings made by the RPD, including
finding on credibility.
[6]
The difficulty with the applicants’ argument is
that nowhere in the RAD’s reasons is there any indication that the RAD deferred
to any of the RPD’s findings. The RAD reviewed the evidence that was before the
RPD and it listened to the recording of the RPD hearing. It considered the
evidence that was in the record and came to its own conclusions with respect to
the significance of that evidence, agreeing with the RPD in some instances, and
disagreeing with it in others.
[7]
The fact that the RAD agreed with some of the RPD’s
findings does not mean that it deferred to the RPD’s findings. Indeed, it is
clear from the RAD’s reasons that it carried out its own independent assessment
of the evidence and came to its own conclusion with respect to the merits of
the applicants’ refugee claim. This is exactly what the applicants say that the
RAD should have done.
II.
The “Microscopic”
Analysis of the RPD
[8]
On several occasions, the RAD found that
negative credibility findings made by the RPD were the result of a microscopic
analysis of the evidence. The applicants argue that the jurisprudence has long
held that it is a reviewable error for the RPD to conduct a microscopic
analysis of evidence adduced in support of a refugee claim, and that having
found that the RPD did just that, it was unreasonable for the RAD to then
uphold the RPD’s decision.
[9]
I do not accept this submission. The fact that
the RAD found fault with certain of the RPD’s findings provides further
confirmation of the fact that it conducted its own independent assessment of the
evidence and came to its own conclusion as to the merits of the applicants’
refugee claims. While it did find that certain of the findings made by the RPD
were based on a microscopic review of the evidence, it found that many other
findings were warranted, and that these other findings were sufficient to
undermine the overall credibility of the applicants’ story. This was a
conclusion that was reasonably open to the RAD on the record before it.
III.
The Denial of a Fair Hearing
[10]
While insisting that they were “not making a formal allegation of bias” on the part
of the RPD because the threshold for establishing bias is high, the applicants
nevertheless say that they were denied a fair hearing of their refugee claim as
a result of the over-zealousness of the RPD, which had “prejudged”
the case and was “prejudiced” against the
applicants. The applicants further assert that the RAD erred in failing to
recognize that the RPD was “out to get” the
applicants.
[11]
Despite the protestations of the applicants, an
allegation that a decision-maker has prejudged a case, is prejudiced against a
party and is “out to get” them is an allegation
of actual bias on the part of the decision-maker, and a party cannot avoid the
test for bias by claiming otherwise.
[12]
The test for determining whether actual bias or
a reasonable apprehension of bias exists in relation to a particular
decision-maker is well known: the question for the Court is what an informed
person, viewing the matter realistically and practically - and having thought
the matter through – would conclude. That is, would he or she think it more
likely than not that the decision-maker, either consciously or unconsciously,
would not decide the matter fairly: see Committee for Justice and Liberty v.
Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R.
(3d) 716.
[13]
An allegation of bias, especially an allegation
of actual, as opposed to apprehended, bias, is a serious allegation as it
challenges the very integrity of the adjudicator whose decision is in issue.
As a consequence, the threshold for establishing bias is indeed high: R. v.
S. (R.D.), [1997] 3 S.C.R. 484, at para. 113, 151 D.L.R. (4th) 193.
[14]
In support of their bias argument, the
applicants point to the instances where the RAD had found the RPD’s review of
the evidence to have been microscopic, and to the RAD’s finding that the RPD
had been “a bit assertive” in its questioning of
the applicants. With respect, this falls far short of establishing bias on the
part of the RPD. This is especially so given that the applicants were
represented by counsel before the RPD, and no objection was raised by counsel
to the conduct of the presiding member at that time.
[15]
The applicants point, in particular, to a
finding by the RPD regarding the applicants’ claim to have prayed over the
telephone with fellow Christians in Iran as supporting their argument that
their refugee hearing was unfair. The RPD found the applicants’ claim to have
prayed over the telephone to be implausible, given that the Iranian government
was known to closely monitor telephone communications. The applicants say that
this was an example of the RPD “stretching or reaching
to justify a negative decision”, and that the RAD erred by simply “rubber stamp[ing]” this finding.
[16]
There are two difficulties with this submission.
The first is an implausibility finding such as this is hardly evidence of a
closed mind on the part of the RPD. The second, and more fundamental problem
with the applicants’ argument is that they did not challenge the RPD’s finding
in their submissions to the RAD. The RAD can thus hardly be faulted for failing
to consider submissions that were not made to it.
[17]
Where an issue of procedural fairness arises,
the Court’s task is to determine whether the process followed by the
decision-maker satisfied the level of fairness required in all of the
circumstances: see Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12 at para. 43, [2009] 1 S.C.R. 339. Having reviewed the matter for myself,
I find that the applicants have failed to demonstrate that they were denied a
fair hearing in this case.
IV.
The “Sur Place” Claim
[18]
Finally, the applicants say that the RAD erred
by failing to have regard to the sur place nature of their refugee claim, even though they acknowledge that
this issue was also not raised by them before the RAD.
[19]
The applicants argue that they should not be
faulted for having failed to claim refugee protection during the five months
that they spent in the United Kingdom or during the seven months that they
spent in Canada prior to making their refugee claim, as they did not have a
well-founded fear of persecution in Iran until September 2, 2013. This was the
date on which the applicants were allegedly informed by the female applicant’s
mother that they were wanted by the Iranian Secret Service Police for apostasy,
and that other members of their Church group had already been arrested.
[20]
Once again, there are two problems with this
submission. The first is that neither the RPD nor the RAD believed the
applicants’ claim that they were wanted for apostasy, and both explained
clearly why no weight was being given to the summons that had been produced by
the applicants in support of their claim.
[21]
The second problem with the applicants’ argument
is that both the RPD and the RAD found as a fact that well-educated individuals
such as the applicants would have been aware of the risk of persecution faced
by Christian converts in Iran long before September 2, 2013. Given this, the
applicants’ failure to seek refugee protection in Canada was found to be inconsistent
with the actions reasonably expected of individuals facing a risk of harm. This
finding was entirely reasonable.
V.
Conclusion
[22]
For these reasons, the application for judicial
review is dismissed.
[23]
The applicants suggested that a question might arise
in this case as to whether the RAD had an obligation to consider a sur place claim, even if the issue had
not been raised by an applicant in his or her appeal submissions. No specific
question was, however, proposed by the applicants in this regard.
[24]
Given that the factual underpinning of the
question has not been established, and that the answer to the question would not
be determinative of this case, I decline to certify a question.
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