Docket: IMM-7710-14
Citation:
2016 FC 200
Ottawa, Ontario, February 15, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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KRISHNAKUMAR
SANMUGALINGAM
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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
[1]
The applicant seeks judicial review of the
decision of the Refugee Appeal Division of the Immigration and Refugee Board of
Canada [RAD] which confirmed the decision of the Refugee Protection Division
[RPD] and found that he is not a Convention refugee or person in need of
protection.
[2]
For the more detailed reasons which follow, I
find that the RAD performed its appellate role and did not err by refusing to
admit new evidence or by declining to hold an oral hearing and that its
confirmation of the decision of the RPD was reasonable. The application for
judicial review is dismissed.
I.
Background
[3]
The applicant is a Tamil from northern Sri
Lanka. He arrived in Canada on August 16, 2013 and claimed refugee protection
shortly thereafter. He recounts harassment, arrests, assaults and detention by
the Liberation Tigers of Tamil Eelam [LTTE] in the early 2000s and upon his
return to Sri Lanka in 2005 and 2008.
[4]
He worked in Dubai from December 2005 to October
2008. He recounts that, upon his return, he was detained by the police three
times, but was released upon paying a bribe.
[5]
He also worked in Saudi Arabia from 2009 to 2011
and recounts that upon his return, he was detained and questioned at the
airport as a way to extort money because he is Tamil.
[6]
In 2012, the applicant was engaged in a video
business in Jaffna, Sri Lanka. In the course of filming a wedding, he observed
and filmed a protest which arose in response to the army’s attack on students
who were celebrating Heroes Day. In his Basis of Claim form [BOC] he states
that the police took his camera and smashed it. He was later arrested,
questioned about his involvement in the rally and turned over to the army on
the suspicion he was a member of the LTTE. He was released 28 days later upon
payment of a bribe. He then left Sri Lanka.
II.
The RPD Decision
[7]
The RPD heard the applicant’s claim on January
30, 2014 and issued its decision on March 20, 2014, finding that he is neither
a Convention refugee nor a person in need of protection.
[8]
The RPD found that the applicant was not
credible because he exaggerated the dangers he faced.
[9]
The RPD did not dispute that dangers surround
those suspected of being LTTE members in Sri Lanka, citing a UNHCR report which
listed particular groups as being at risk due to “more
elaborate” links to the LTTE. The RPD noted that the applicant stated
that he was not a member of one of these groups.
[10]
The RPD found that the applicant had not
satisfied his onus of establishing that he would face a serious possibility of
persecution, noting that his testimony was not consistent with the documentary
evidence. The RPD also found that the applicant failed to produce documents
that would have established his claim, such as confirmation of his travels, his
passport, confirmation of his registration at a shelter in Buffalo or a medical
report to substantiate his injuries in Sri Lanka.
III.
The RAD Decision
New Evidence
[11]
The applicant sought to submit an affidavit of
his wife dated April 24, 2014 and the 2014 National Documentation Package
[NDP], which included the 2013 US Department of State [DOS] report and several
articles.
[12]
The RAD noted that, pursuant to subsection
110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act], an applicant is only permitted to submit evidence that arose after the
rejection of the claim that could not reasonably have been expected to have
been presented at the time of the rejection.
[13]
The RAD found that the affidavit failed to meet
the criteria in subsection 110(4) as it was reasonably available to the applicant
before the RPD decision.
[14]
The RAD noted that in Raza v Canada (Minister
of Citizenship and Immigration), 2007 FCA 385, 289 DLR (4th) 675 [Raza],
the Federal Court of Appeal set out factors to be considered in assessing new
evidence, in addition to the statutory requirements. The RAD noted that, even
if it were to admit the affidavit because it arose after the rejection of the applicant’s
claim, further consideration would be warranted, including its credibility,
relevance, newness and materiality.
[15]
The RAD considered the contents of the affidavit
and other circumstances and found it was not credible.
[16]
With respect to the 2014 NDP, the RAD found that
the 2013 US DOS report was similar to the 2012 report and could not be
considered new evidence. In addition, it was not material.
[17]
The RAD found that the news releases included in
the NDP were available on the internet in 2012, before the RPD rendered its
decision.
[18]
The RAD acknowledged that it was not certain
whether the 2012 “Landinfo” report, which describes the situation in Sri Lanka
between 2010 and 2012, had been translated at the time of the RPD decision. The
RAD accepted that it might not have been available before the RPD decision, but
found that the report was not material to the claim because the information
within the document was also found within the 2013 NDP, which was on the
record.
Oral Hearing
[19]
With respect to the request for an oral hearing,
the RAD noted that in accordance with subsections 110(3) and (6) of the Act, a
new hearing may be held if there is new evidence that raises a serious issue
with respect to the credibility of the applicant that is central to the RPD’s
decision and that, if admitted, would justify allowing or rejecting the claim.
Given that the new evidence was found not to be admissible, the RAD denied the
application for an oral hearing. The RAD added that if the new evidence had
been admitted, it would not justify allowing or rejecting the claim.
The Merits of the Appeal
[20]
The RAD noted that in accordance with Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] 4
FCR 811 [Huruglica], it would review all the evidence and come to its
own independent assessment of whether the applicant is a Convention refugee or
person in need of protection and acknowledged that it could defer to the RPD
where the RPD “enjoys a particular advantage” on
issues such as credibility.
[21]
The RAD found that the RPD erred by making
credibility findings on the basis of the applicant’s lack of passport, shelter
registration documentation and medical documentation, but found that the RPD’s
error was not determinative of its decision.
[22]
The RAD found that it was open to the RPD to
find that some aspects of the applicant’s testimony lacked credibility, such as
his exaggeration of the dangers experienced by Tamils, and still find that he
may be subject to harassment.
[23]
With respect to his risk, the RAD found that
there was no evidence that the RPD failed to take into account all of the
applicant’s evidence, including the arrests and detentions which were not the subject
of credibility findings.
[24]
With respect to his fear, the RAD noted that
there was no evidence that the applicant had any problems leaving Sri Lanka in
2005 and 2009, no evidence that he was perceived to be a member or sympathizer
of the LTTE, and no evidence that he is being pursued by Sri Lankan
authorities.
[25]
However, the RAD found that the RPD’s analysis
of whether the applicant would be in jeopardy as a young male Tamil was not
extensive and conducted its own additional analysis based on the evidence in
the record. The RAD noted the UNHCR Guidelines dated July 2010 which indicated
that there was no longer a need for group-based protection or presumption of
eligibility for Sri Lankan Tamils from the North. The 2012 Guidelines also stated
that each claim should be determined on its merits, but that Tamils are more
often subject to arbitrary action.
[26]
The RAD acknowledged that the record is mixed
regarding the post-war settlement and the government’s turn to authoritarianism
in Sri Lanka, but noted that the 2012 Guidelines did not retract the statements
from the 2010 Guidelines regarding the changed circumstances since the end of
the war.
[27]
The RAD found that the applicant’s profile did
not fit that of a person suspected of having links with the LTTE. He did not
allege that he has ever been a member or supporter of the LTTE. No evidence was
disclosed, other than his testimony, that he is perceived to be associated with
the LTTE. Most of his detentions were brief and were the result of general round-ups
which did not target him. The applicant was released after two to three weeks
in his other detentions. The RAD confirmed the RPD’s finding that he would not
have been released in 2001 if the authorities believed that he was associated
with the LTTE. The RAD also found that, while the RPD erred by not analyzing
all of the applicant’s detentions, in each of the incidents that were not
addressed, the applicant was released and the incidents did not reflect that he
was suspected of being associated with the LTTE.
[28]
With respect to whether the applicant’s profile
as a failed asylum seeker supports a well-founded fear of persecution, the RAD
noted the evidence that Tamils are subject to the same screening process as
others returning to Sri Lanka, regardless of whether they are returning
voluntarily or because of a failed refugee claim. The RAD acknowledged the
mixed evidence, but found that the evidence supported that the applicant would
not attract persecutory attention from the Sri Lankan authorities.
[29]
The RAD concluded that the applicant is not a
Convention refugee or person in need of protection and confirmed the RPD’s
decision.
IV.
The Issues
[30]
The applicant raised several arguments regarding
errors made by the RAD in its conduct of the appeal, some of which overlap or
are related. The arguments focus on three questions:
(1)
Did the RAD err by refusing to admit the new
evidence pursuant to subsection 110(4) of the Act, including by applying the Raza
factors?
(2)
Did the RAD err by not convening an oral hearing
pursuant to subsection 110(6) of the Act and did the RAD breach procedural
fairness by making credibility findings without providing the applicant an
opportunity to respond?
(3)
Did the RAD err by performing more of a judicial
review role, including by relying on the RPD’s credibility concerns and finding
them to be reasonable, without conducting an independent analysis?
V.
The Standard of Review
[31]
The applicant argues that the RAD did not
perform an appellate function and for this reason alone the decision cannot
stand.
[32]
The standard of review to be applied by this
Court to decisions of the RAD on the issue of the standard of review the RAD
should apply has been the subject of a great deal of jurisprudence and will
soon be settled by the Federal Court of Appeal in its consideration of Huruglica.
[33]
The jurisprudence has been consistent in
establishing that it is an error for the RAD to perform a judicial review
function and apply the reasonableness standard to the RPD’s decision. The RAD
should perform its appeal function: Huruglica at para 54; Iyamuremye
v Canada (Minister of Citizenship and Immigration), 2014 FC 494 at para 38,
[2014] FCJ No 523 (QL); Alyafi v Canada (Minister of Citizenship and
Immigration), 2014 FC 952 at para 10, [2014] FCJ No 989 (QL); Diarra v
Canada (Minister of Citizenship and Immigration), 2014 FC 1009 at paras
27-29, [2014] FCJ No 1111 (QL); Djossou v Canada (Minister of Citizenship
and Immigration), 2014 FC 1080 at para 37, [2014] FCJ No 1130 (QL); Aloulou
v Canada (Minister of Citizenship and Immigration), 2014 FC 1236 at paras
52-59, [2014] FCJ No 1307 (QL); Bui v Canada (Minister of Citizenship and
Immigration), 2014 FC 1145 at para 22, [2014] FCJ No 1271 (QL); and other
more recent cases.
[34]
With respect to questions of credibility,
although there are some nuances, the jurisprudence has established that the RAD
may defer to the RPD because the RPD has heard the witnesses directly, has had
an opportunity to probe their testimony or has had some advantage not enjoyed
by the RAD (see for example, Huruglica at para 55; Akuffo v Canada
(Minister of Citizenship and Immigration), 2014 FC 1063 at para 39, [2014]
FCJ No 1116 (QL); Nahal v Canada (Minister of Citizenship and Immigration),
2014 FC 1208 at para 25, [2014] FCJ No 1254 (QL)). However, the Court has also
noted that such deference should follow from an independent assessment of the
evidence, given that the RAD is performing an appellate function (see for
example, Khachatourian v Canada (Minister of Citizenship and Immigration),
2015 FC 182 at para 31, [2015] FCJ No 156 (QL) [Khachatourian]; Balde
v Canada (Minister of Citizenship and Immigration), 2015 FC 624 at para 23,
[2015] FCJ No 641 (QL)).
[35]
With respect to the RAD’s determination
regarding the admissibility of new evidence, the standard of reasonableness
applies (Singh v Canada (Minister of Citizenship and Immigration), 2014
FC 1022 at paras 36-42, 246 ACWS (3d) 433 [Singh]; Khachatourian
at para 37).
[36]
Similarly, the RAD’s decision whether to hold an
oral hearing in accordance with subsection 110(6) is based on its assessment of
whether the criteria have been established and if so, whether to exercise its
discretion to hold an oral hearing and is reviewed on the standard of
reasonableness.
[37]
Issues of procedural fairness are reviewable on
the correctness standard (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339; Zhou v Canada (Minister
of Citizenship and Immigration), 2013 FC 313 at para 12, [2013] FCJ No 350
(QL)).
VI.
Did the RAD err in refusing to admit new
evidence?
The Applicant’s Submissions
[38]
The applicant argues that the RAD erred by
relying on the Raza factors to inform its consideration of whether to
admit the new evidence in accordance with subsection 110(4) and erred in
refusing to admit the new evidence. The applicant argues that his wife’s
affidavit addressed the credibility concerns of the RPD, which were central to
the decision, and its acceptance would have led to a different outcome.
[39]
The applicant submits that it was unfair for the
RAD to find that his wife’s affidavit could have been provided earlier given
that the police visited his wife after the RPD hearing had concluded (although
before the decision was made). The applicant adds that he had no way of knowing
when the RPD would render its decision.
[40]
The applicant also argues that the RAD erred in
applying the Raza factors, which were established with reference to
subsection 113(a) of the Act in the context of a PRRA decision not an appeal.
The applicant points to the decision of Justice Gagné in Singh which
noted that the context is an important distinguishing factor and that it should
not be assumed that the Raza factors govern subsection 110(4)
determinations regarding the admissibility of new evidence.
The Respondent’s Submissions
[41]
The respondent submits that the RAD’s
consideration of the factors set out in Raza in its determination of
whether the documents should be admitted as “new
evidence” was reasonable.
[42]
The respondent notes that the RAD’s decision to
not admit the new evidence is supported by the wording of subsection 110(4).
[43]
The respondent adds that Rule 43 of the Refugee
Protection Division Rules, SOR/2012-256 [Rules] provides that the applicant
could have provided the affidavit to the RPD at any time before its decision
was rendered. The applicant had an opportunity to have the affidavit prepared
and submitted to the RPD but did not do so until he appealed to the RAD. The
RAD did not err by finding that the document could have been submitted before
the decision.
[44]
In addition, the RAD conducted an independent
assessment of the affidavit and reasonably found it was not credible. The
respondent submits that the RAD would not be required to admit evidence that is
not credible.
The RAD did not err by
refusing to admit the new evidence
[45]
In the present case the issue is first, whether
the RAD relied on the Raza factors to determine the admissibility of the
new evidence and second, whether the RAD erred in doing so without considering
the different context of an appeal.
[46]
I acknowledge that there is currently some
uncertainty with respect to the application of Raza factors - where the
Federal Court of Appeal identified factors or questions that implicitly arise
from the criteria for new evidence on a PRRA application in accordance with subsection
113(a) to an appeal before the RAD. On one hand, the principles of statutory
interpretation support the view that the same words should be interpreted in
the same manner, and there is no dispute that the wording of subsection 110(4)
and subsection 113(a) are almost identical. In addition, both provisions are
aimed at limiting the evidence that may be provided. On the other hand, in Raza,
Justice Sharlow noted that four of the questions or factors (credibility,
relevance, newness and materiality) are necessarily implied from the purpose of
subsection 113(a) within the Act (at para 14) and that a PRRA is not an appeal
of the RPD decision, although it may require consideration of some or all of
the same issues (at para 12).
[47]
In Singh, Justice Gagné highlighted the
need to consider the different context of a PRRA decision and a RAD decision.
In my view, Justice Gagné did not exclude consideration of the Raza
factors, as long as the decision maker understands that in the context of an
appeal, more latitude may be needed to accept “new”
evidence.
[48]
Justice Gagné noted at para 58, that the “main issue is whether the evidence ‘was not reasonably
available, or that the person could not reasonably (or normally according to
the French version) have been expected in the circumstances to have presented.’”
In other words, the statutory language should be the key consideration.
[49]
Pending the resolution of the issue by the
Federal Court of Appeal in Singh, the jurisprudence supports the view
that reference to the Raza factors for guidance is not an error where
the RAD acknowledges that it is conducting an appeal and is considering whether
to admit new evidence in this context. Nor is it an error where the RAD refers
to the Raza factors, but the determination whether to admit the new evidence
is clearly supported by the application of the words of subsection 110(6).
[50]
In Oluwole v Canada (Minister of Citizenship
and Immigration), 2015 FC 953 at paras 36-37, [2015] FCJ No 962 (QL),
Justice Southcott acknowledged Justice Gagné's analysis in Singh, and
Justice Mosley’s different analysis and conclusion in Denbel v Canada
(Minister of Citizenship and Immigration), 2015 FC 629, [2015] FCJ No 646
(QL) [Denbel], and found that the Raza factors could be
considered in the context of the applicant’s right to a “full-fact based appeal”.
[51]
In Denbel, Justice Mosley noted at para
43:
[43] When interpreting legislative
intent, the Court must give priority to the written text in the absence of any
lexical ambiguity. The Court’s opinions on best policy cannot supplant the text
of the law; nor can select passages from the Hansard. In my view, Parliament
intended these two provisions to enshrine the same legal test. If Parliament
had intended to establish more flexible admissibility rules in RAD appeals, it
would not have replicated the restrictive language which governs PRRAs.
[…]
[52]
In HAK v Canada (Minister of Citizenship and
Immigration), 2015 FC 1172 at paras 14-15, [2015] FCJ No 1231 (QL), Justice
Fothergill noted that the application of Raza was not settled, but found
that regardless of whether there was a strict or flexible application of Raza,
the RAD’s rejection of the new evidence, which could have been provided earlier
and which was not probative, was justified.
[53]
In Majebi v Canada (Minister of Citizenship and
Immigration), 2016 FC 14, [2016] FCJ No 12, Justice Fothergill found the
RAD’s rejection of new evidence to be reasonable, where it found that the
evidence could have been provided earlier, no explanation was provided for not
so doing and the rejection was in accordance with the express statutory requirements,
noting at para 19:
[…] The flexible approach described in Singh
concerns the admissibility of evidence only after the threshold requirements of
s 110(4) of the IRPA have been met (Fida v Canada (Minister of Citizenship
and Immigration), 2015 FC 784 at paras 6-8; Deri v Canada (Minister of
Citizenship and Immigration), 2015 FC 1042 at paras 55-56). Justice Gagné
in Singh acknowledged that the central issue regarding the admissibility
of new evidence is whether “the evidence was not reasonably available, or that
the person could not reasonably ... have been expected in the circumstances to
have presented” the evidence before the RPD (Singh at para 58). […]
[54]
The applicant appears to accept that the documents
in the NDP were not new evidence because the documents reiterated the same
information included in the previous year’s version which was part of the
record before the RPD. Although I note the applicant’s objection to the RAD’s
references to the lack of materiality of the evidence, which the applicant
regards as an inappropriate reference to the factors in Raza, the NDP
and the “Landinfo” document were found to not be “new”
within the meaning of subsection 110(4).
[55]
The applicant focuses on the affidavit from his
wife. However, the applicant’s argument that the RAD erred in referring to the Raza
factors overlooks that the RAD clearly found at the outset that the affidavit
failed to meet the test in subsection 110(4) as it was reasonably available to
the applicant before the RPD decision. The RAD noted that the affidavit stated
that the police had come to the applicant’s home in Sri Lanka on March 6, 2014
and that the applicant’s wife advised the applicant by phone immediately
thereafter. The RAD found that this affidavit could have reasonably been
prepared and submitted before the RPD decision, which was rendered on March 20,
2014 and that there was no explanation why the applicant’s wife waited until
April 24, 2014 to prepare and send the affidavit. It is true that the applicant
would not have known when the decision would be rendered, but this does not
explain the delay. The newness of a document is not based on the date of its
creation; rather, the focus is on the date of the event or circumstance that the
document seeks to prove (Raza at para 16).
[56]
The RAD’s finding that the affidavit failed to
meet the test in subsection 110(4) as it was reasonably available to the
applicant before the RPD decision has nothing to do with the RAD’s
consideration of the Raza factors, which were additional or alternative
findings.
[57]
In addition, the applicant could have submitted
documents after the hearing, but before the decision, pursuant to Rule 43 of
the Rules governing the RPD.
[58]
The RAD set out the reasons for its credibility
findings regarding the affidavit noting that it reiterated what the applicant
had recounted in his BOC and added the March event. The RAD noted that the
police would not likely have waited until March 2014 to follow up on a video
taken in November 2012 and that this story was inconsistent with the applicant’s
allegation in his BOC that the police took his video camera and smashed it (so
there would have been no video). These credibility findings, although not
determinative of the admissibility of the affidavit, are reasonable. I also
agree with the respondent that a decision maker would be remiss in not
considering the credibility of the proposed new evidence.
[59]
In summary, the RAD’s determination of whether
to accept the new evidence was based primarily on the statutory requirements in
subsection 110(4) because the evidence was found to have been reasonably
available before the RPD rejected the claim. The consideration of the Raza
factors was in the alternative or in addition to the primary determination based
on the statutory wording.
[60]
Moreover, as noted above, it is not an error to
consider the Raza factors where the RAD does so with regard to the
context and purpose of the appeal.
VII.
Did the RAD err by declining to convene an oral
hearing?
The Applicant's Submissions
[61]
The applicant submits that the affidavit of his
wife responded to the RPD’s credibility concerns, which were central to his
claim and would have resulted in a different outcome. As a result, the criteria
of subsection 110(3) were met and the RAD should have held an oral hearing to
permit him to address the RAD’s concerns.
[62]
The applicant also argues that, regardless of
subsection 110(3), the duty of procedural fairness requires that an oral
hearing should have been held to provide him with an opportunity to respond to
the RAD’s credibility concerns regarding his wife’s affidavit and the
credibility findings which the RAD adopted from the RPD, which the applicant
argues were done without an independent assessment.
[63]
To support his argument that the RAD did not
independently assess the findings, the applicant points to the concluding
paragraph of the decision, where the RAD notes that it relied on the RPD’s
credibility findings.
[64]
The applicant adds that in accordance with Husian
v Canada (Minister of Citizenship and Immigration), 2015 FC 684 at paras
9-10, [2015] FCJ No 687 (QL) [Husian], the RAD should have provided an
opportunity for him to respond to its credibility concerns, because like in Husian,
the RAD went on a “frolic” into the evidence of
the RPD.
The Respondent’s Submissions
[65]
The respondent submits that the RAD reasonably
rejected the affidavit as new evidence in accordance with subsection 110(4);
therefore, the statutory criteria in subsection 110(6) were not satisfied.
[66]
The respondent notes that the RAD conducted an
assessment of the evidence before the RPD, deferred to some of the RPD’s
credibility findings, as it was entitled to do, and rejected others.
The RAD did not err by declining to convene an oral
hearing
[67]
The general rule set out in subsection 110(3) is
that the RAD must proceed without an oral hearing. However, subsection 110(6)
provides an exception where a hearing may be held where certain criteria are
met. Even if those criteria are met, the RAD still has discretion and can
decline to hold an oral hearing. In the present case, the RAD found that the
criteria were not met because the new evidence was not admissible. That
finding, as noted above, is reasonable.
[68]
With respect to the RAD’s common law duty of procedural
fairness, the applicant’s reliance on Husian is misplaced and somewhat
inconsistent with his allegations that the RAD did not conduct an independent
assessment. In Husian, Justice Hughes found that where the RAD makes new
credibility findings, the parties must be given the opportunity to make
submissions. Justice Hughes highlighted the pitfalls of the RAD making
credibility findings, which are then open to review, noting at paras 9-10:
[9] We come to the basis for sending
the matter back to the RAD for re-determination. Had the RAD simply reviewed
the findings of the RPD as to the adequacy of the Applicant’s evidence and
agreed with it, that would have ended the matter. It did not. For whatever
reason, the RAD went on to give further reasons, based on its own review of the
record, as to why the Applicant’s evidence was not to be believed. It held, at
paragraph 43, that it was unable to locate any evidence to support the
Applicant’s claim to also being a member of the Dhawarawayne clan. That was
wrong; there is such evidence in the Responses to Information Requests. The
comments by the RAD as to the differences in the spelling of the Applicant’s
name in the US proceedings versus the Canadian proceedings is nonsense: of
course, there will be differences where a different alphabet and language is in
question such as Somali and English. There are other errors.
[10] The point is that if the RAD
chooses to take a frolic and venture into the record to make further
substantive findings, it should give some sort of notice to the parties and
give them an opportunity to make submissions.
[69]
The present circumstances are markedly different
than Husian. Here, the RAD rejected some of the RPD’s credibility
findings and deferred to the RPD with respect to other credibility findings
after its own assessment of the evidence on the record. The RAD did not “take a frolic and venture into record” to make new
credibility or additional findings based on the RPD’s record. The RAD’s new
credibility finding was with respect to the affidavit tendered as new evidence.
That affidavit was not in the RPD’s record as it was only submitted to the RAD.
[70]
In addition, after finding that the RPD
assessment was not extensive, the RAD conducted its own assessment of the
country condition evidence regarding the risk the applicant faced. The RAD was
entitled and, in fact, required to conduct an independent assessment of the
evidence on the record (Huruglica at para 47).
[71]
The RAD did not breach the common law duty of
procedural fairness. The applicant had the opportunity to respond to the RPD’s
credibility concerns in his submissions to the RAD, including by requesting to
submit new evidence. The RAD was not required, on the facts of this case, to
provide an opportunity for the applicant to respond to its concerns about an
affidavit that they refused to admit primarily based on statutory criteria.
VIII.
Did the RAD err by performing a judicial review
role?
The Applicant’s Submissions
[72]
The applicant argues that despite the RAD
stating that it applied Huruglica and would conduct an independent assessment
of the evidence, the RAD’s review was more akin to a judicial review as it
readily deferred to the RPD, including on credibility, and used judicial review
language.
[73]
The applicant points to the RAD’s comment with
respect to the 2014 NDP, which the RAD found was not “new”
evidence. The RAD noted that “had this evidence been
available to the RPD, it would not have resulted in a positive decision
regarding this claim.” Similarly, the RAD found that if the “Landinfo”
document had been available, it would not have resulted in a positive decision.
[74]
The applicant argues that the RAD should have
conducted its own analysis of this evidence rather than speculate on the RPD’s
view and that the RAD’s approach shows the type of deference more typical of a
judicial review.
[75]
The applicant also submits that the RAD found
that certain findings of the RPD were “reasonable”
and that the concluding paragraph of the RAD decision states that the RAD
relied on the RPD’s credibility findings, which also suggests a judicial review
approach.
[76]
The applicant also argues that the RAD either
failed to assess or erred in its assessment of the evidence, particularly the May
2013 Response to Information Request [RIR], in finding that all Tamils are
subject to the same screening process upon their return to Sri Lanka. The
documentary evidence supports the view that failed asylum seekers who are Tamil
face different screening and often face lengthy interrogations and abuse, on
suspicion or perception that they may have had affiliations with the LTTE,
particularly those returning from countries with large Tamil communities and
after lengthy absences.
The Respondent’s Submissions
[77]
The respondent submits that the applicant’s
position that the RAD relied entirely on the RPD’s reasons is without merit:
the RAD agreed the RPD made some errors, but found these errors were not fatal
to the claim. The respondent adds that the RAD decision reflects its independent
assessment of the evidence.
[78]
The respondent also points out that the
applicant does not take issue with the RAD’s agreement with the RPD’s findings
that the applicant exaggerated the danger that he might face as a young Tamil
and that he admitted that he is not part of one of the groups that are likely
to face problems in Sri Lanka.
The RAD did not perform a judicial review; it conducted an
independent assessment
[79]
As noted above, the jurisprudence has
established that the RAD should perform its appellate role and conduct an
independent assessment of the evidence. It did so.
[80]
The jurisprudence also supports the view that
the RAD may defer to the credibility findings of the RAD but should conduct its
own independent assessment of those findings before doing so.
[81]
The RAD did not take a judicial review approach
and simply find that the RPD’s credibility findings were reasonable because the
RPD had heard first hand from the applicant. To the contrary, the RAD conducted
an independent assessment of the evidence on the record and only deferred to
some of the RPD’s credibility findings. The RAD found that other credibility
findings were in error, but those findings were not determinative. For example,
the RAD explicitly rejected the finding of the RPD that the applicant’s failure
to produce documentation detracted from his credibility. Instead, the RAD found
that it was open to the RPD to find that some aspects of the applicant’s
testimony lacked credibility and exaggerated the dangers experienced by Tamils.
[82]
The few phrases of the RAD decision highlighted
by the applicant simply do not suggest inappropriate deference to the RPD or
suggest that the RAD performed a judicial review function. Both comments were
made in the context of whether new evidence should be admitted in accordance
with subsection 110(4) and the RAD’s consideration of how the Raza
factors would apply. The applicant’s argument that the RAD should have assessed
this evidence and not considered whether it would have made a difference to the
RPD overlooks that the RAD did assess the evidence and found that it was not
admissible, primarily based on the statutory criteria, as found above.
Moreover, these comments do not show deference, but reflect the materiality
factor from Raza.
[83]
There is only one reference in the RAD’s
decision (at para 40) where the RAD found the RPD finding that the applicant exaggerated
or overstated the everyday danger and drew a negative credibility inference was
“reasonable”. As repeatedly noted, the RAD is
entitled to defer to credibility findings, since it conducted its own
assessment.
[84]
The RAD’s concluding paragraph is clear in
stating that its decision is based first on its own assessment: “on the basis of its review of all the evidence in this
case, and also on the basis of the RPD’s credibility findings
concerning the alleged perception by Sri Lankan authorities, that the Appellant
was associated with the LTTE, and also on the basis of the additional analysis
provided by the RAD….” [Emphasis added.]
[85]
That summary does not suggest in any way that
the RAD failed to conduct the independent assessment expected on an appeal or
that it deferred to the RPD’s findings.
[86]
With respect to the applicant’s argument that
the RAD misinterpreted the RIR within the May 2013 NDP it relied on to find
that the evidence, although mixed, supported that the applicant would not be
targeted if he returned to Sri Lanka. I have reviewed that RIR and the document
referred to within (LKA103815.E dated August 2011). The RAD did not
misinterpret or misstate any of the information included in that document.
Based on the RAD’s review of the country condition documents, including the RIR
and, as noted by the RAD, the UNHCR Guidelines and British Home Office Report,
the RAD concluded that the applicant would not be targeted and would not face a
serious possibility of persecution. That finding is supported by the evidence
and is reasonable.
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