Docket: A-549-15
Citation:
2016 FCA 272
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CORAM:
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DAWSON J.A.
NEAR J.A.
WOODS J.A.
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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R. K. AND C. K.
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Respondents
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The claim for refugee protection advanced by the
adult claimant and her infant son was rejected by the Refugee Protection
Division of the Immigration and Refugee Board because it found the adult
claimant’s testimony lacked credibility.
[2]
The decision of the Refugee Protection Division
was appealed to the Refugee Appeal Division of the Immigration and Refugee
Board. The appeal was not based on any error said to have been made by the
Refugee Protection Division. Rather, the appeal was framed on the basis of new
evidence that the adult claimant had been sexually assaulted while in detention
in her country of origin. The Appeal Division admitted the new evidence and
elected to hold a hearing restricted to the credibility of the allegation of
sexual assault and, if the allegation was found to be credible, whether the
claimants had rebutted the presumption of state protection.
[3]
The Appeal Division dismissed the claimants’
appeal on the basis that the new allegation lacked credibility.
[4]
For reasons cited as 2015 FC 1304, the Federal
Court allowed the claimants’ application for judicial review of the decision of
the Appeal Division on the sole ground that the Appeal Division failed to
conduct a full de novo review of the claimants’ claim on the basis of
all of the evidence. The Federal Court rejected the submission of the Minister
of Citizenship and Immigration that the Appeal Division was not required to
conduct a de novo hearing upon all of the evidence but only upon the new
evidence. The Federal Court stated and certified the following question:
Is there any deference owed by the Refugee
Appeal Division (RAD) to the Refugee Protection Division’s (RPD) credibility
findings where the RAD holds a hearing under section 110(6) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27?
[5]
This is an appeal brought by the Minister from
the judgment of the Federal Court.
[6]
In my view, this appeal turns on a single issue:
the failure of the claimants, the respondents in this Court, to request a de
novo hearing before the Appeal Division. Because the claimants did not
request that the Appeal Division conduct a de novo hearing on all of the
evidence, they were precluded from raising in the Federal Court any issue relating
to the Appeal Division’s failure to hold a de novo hearing. This is
because the reasonableness of the Appeal Division’s decision cannot normally be
impugned on the basis of an issue not put to it particularly where, as in the
present case, the new issue raised for the first time on judicial review
relates to the Appeal Division’s specialized functions or expertise (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654 at paragraphs 23-25).
[7]
Before us the respondents argue that they did
raise the issue of a de novo hearing at the Appeal Division. I disagree
for the following reasons:
i.
The relief sought by the respondents in their
memorandum filed before the Appeal Division was an order quashing the decision
of the Refugee Protection Division and returning the matter for a new hearing
before the Refugee Protection Division. This relief is inconsistent with a de
novo hearing before the Appeal Division.
ii.
The list of issues for hearing provided by the
Appeal Division stated the hearing would be “restricted”
to the following issues:
1. Is the
allegation of rape made by the Principal Appellant … in her affidavit, pages 18
to 24 of the Appellant’s Record credible and trustworthy?
2. If so,
are the Principal Appellant and the Minor Appellant … entitled to refugee
protection under sections 96 or 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA) and, in particular, is it established that the
appellants have rebutted the presumption of state protection?
3. All new
evidence.
An amended list of issues, provided
by the Appeal Division after the new evidence was admitted, repeated that the
hearing would be restricted to the first two issues.
The respondents raised no objection
to the issues as framed by the Appeal Division.
iii.
The following exchanges took place at the Appeal
Division between the presiding member and counsel for the respondents:
PRESIDING
MEMBER: Okay. Now as we discussed earlier,
Counsel, this is an oral hearing that’s come out of a request from a rejection
of an RPD claim and the oral hearing arises out of new evidence. The issue is
restricted to that of the sexual assault.
And I’ll go
through the exhibit list although I will be admitting that evidence, well I’ll
separate it into the original evidence that arrived at the Board with the
request for an oral hearing as opposed to the evidence that’s arrived since.
And I will explain to you why I will not be accepting that evidence.
(Transcript page
1105, lines 26-34)
…
PRESIDING
MEMBER: Well no, the whole issue is sexual
assault, let me deal with that.
COUNSEL: Sure.
PRESIDING
MEMBER: The oral hearing was granted on the
basis of a new issue which it had not arisen at the original hearing.
COUNSEL: Right.
PRESIDING
MEMBER: That’s quite plain and simple. The
issue is, the new issue is sexual assault.
COUNSEL: Okay.
PRESIDING
MEMBER: So I’m asking that you restrict your
questions to that.
COUNSEL: Sure.
(Transcript page
1107, lines 27-44)
…
PRESIDING
MEMBER: So it’s a 96 and 97. But the purpose I
guess, the concern I had too with your late documents, notwithstanding the fact
that they had no Rule 29 application, to a large extent there were documents
there relating to the Board’s original decision and trying to answer, respond
to it, that is not the idea of an oral hearing.
COUNSEL: Okay.
PRESIDING
MEMBER: An oral hearing is to address new
evidence only.
COUNSEL: Sure.
PRESIDING
MEMBER: And it’s not to refute or respond to
what the RPD wrote in its original decision. Okay?
So, and your
submission supports what I’ve just said.
COUNSEL: Mm-hmm.
PRESIDING
MEMBER: You’ve basically, in fact you even said
in your submission, I re-read it last night, that the Board’s finding on the
basis of not indicating this issue was reasonable.
COUNSEL: Sure.
PRESIDING
MEMBER: So really this is the only issue.
COUNSEL: Okay.
PRESIDING
MEMBER: So is that fair enough?
COUNSEL: Absolutely.
(Transcript page
1108, lines 6-36)
…
(PRESIDING
MEMBER): Is there anything else, Counsel, I’m just
going to check and make sure that I haven’t omitted anything.
And I’ll just
reiterate in terms of the issue that it’s Rule 57 which restricts the hearing
to matters relating to the issues provided with the notice to appear, so I
think you understand that, Counsel.
COUNSEL: Yes.
(Transcript page
1109, lines 5 to 11)
[8]
These facts are inconsistent with the submission
that the respondents sought a full de novo hearing before the Appeal
Division.
[9]
The respondents also argue that the appellant is
impermissibly arguing, for the first time on appeal, that the issue of the de
novo hearing was not properly before the Federal Court. There is no merit
in this submission because the issue was not raised in the respondents’
application for leave and judicial review and was not included as one of the
four issues framed by the respondents in their memorandum of fact and law filed
in support of the leave application.
[10]
For these reasons I would allow the appeal and
set aside the judgment of the Federal Court. Pronouncing the judgment the Federal
Court should have pronounced, I would dismiss the application for judicial
review. I would decline to answer the certified question because the issue of a
full de novo hearing and the related issue of the degree of deference
owed to the findings of the Refugee Protection Division were not raised before
the Appeal Division and were not properly before the Federal Court. If these
issues are raised in the future, this Court and the Federal Court ought to have
the benefit of the views of the Appeal Division on the issues.
“Eleanor R. Dawson”
“I agree
D.G. Near J.A.”
“I agree
Judith M. Woods
J.A.”
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