Docket: IMM-926-17
Citation:
2017 FC 1138
Ottawa, Ontario, December 13, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JALIL NIKKHOO
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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]
Mr. Nikkhoo is a citizen of Iran who arrived in
Canada on a temporary resident visa in March 8, 2016. He initiated a refugee
claim in May 2016 alleging persecution on the grounds that he is a practitioner
of Erfan Keyhani, also known as Interuniversalism. The practice of Erfan
Keyhani is banned by the Iranian government.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada found Mr. Nikkhoo’s narrative to be
inconsistent and lacking in credibility. The RPD concluded he was neither a
Convention Refugee under section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] nor a person in need of protection
under section 97.
[3]
He appealed the RPD decision to the Refugee
Appeal Division [RAD]. The RAD confirmed the original decision and dismissed
the appeal. Mr. Nikkhoo now seeks judicial review of the RAD determination
pursuant to subsection 72(1) of IRPA. He submits that the decision was
unreasonable as the RAD: failed to conduct an independent analysis of the
evidence; found, contrary to well settled law that the applicant’s lack of
in-depth knowledge of his faith proved that he was not a genuine follower of
Erfan Keyhani; and failed to consider all the evidence before rejecting his sur
place claim.
[4]
For the reasons that follow I am unable to
conclude the decision was unreasonable. The application is dismissed.
II.
Standard of Review
[5]
The RAD’s assessment of evidence and findings of
mixed fact and law are to be reviewed against a standard of reasonableness (Fu
v Canada (Citizenship and Immigration), 2017 FC 1074 at para 10; Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 35 [Huruglica]).
In considering the reasonableness of a decision the Court is primarily
interested in whether the decision reflects the elements of justification,
transparency and intelligibility within the decision-making process and whether
the decision falls within a range of possible, acceptable outcomes which are in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC
9 at para 47).
III.
Analysis
[6]
In considering Mr. Nikkhoo’s appeal the RAD
undertook a detailed analysis of its role in both addressing new evidence he
sought to place before the RAD and in outlining its role in accordance with the
jurisprudence of this Court and the Federal Court of Appeal (Huruglica; Dhillon
v Canada (Citizenship and Immigration), 2015 FC 321; Akuffo v Canada
(Citizenship and Immigration), 2014 FC 1063). In doing so the RAD expressly
noted “it is particularly important that the RAD engage
in its own review of the evidence, in order to determine whether the RPD’s
finding is supported by that evidence.” The RAD recognized it was to
apply a correctness standard in considering the appeal but also was in a
position to defer to the RPD’s findings where the findings resulted from “the RPD’s distinct advantages or from a comprehensible
reasoning process whose premises are rooted in such advantages.”
[7]
Not only did the RAD accurately define its role,
it then proceeded to conduct a review of the RPD decision in a manner that was
fully consistent with that role.
[8]
The RAD did not simply “rubber
stamp” the RPD’s findings as they related to Mr. Nikkhoo’s claimed
religious beliefs and the RPD’s credibility findings. Rather it engaged in a consideration
of the evidence. The RAD concluded that the RPD was owed deference in respect
of some negative credibility findings. It differed in respect of other credibility
findings. In other areas, after reviewing the evidence, the RAD reached the
same conclusion as the RPD. Finally the RAD considered the fresh evidence
placed before it in the form of a court summons, a document the RAD reasonably
concluded was falsified.
[9]
Unlike the situation in Jeyaseelan v Canada
(Citizenship and Immigration), 2017 FC 278, upon which Mr. Nikkhoo relies,
the RAD did undertake an independent assessment of the evidence. On the basis
of this independent assessment it then arrived at its conclusions on issues of credibility,
genuine belief and the sur place claim.
[10]
The RAD did not err in carrying out its appeal
function nor did it unreasonably conclude that Mr. Nikkhoo was generally
lacking in credibility. The RAD’s treatment of this evidence shows that
it was alive to the RPD’s reasoning, but also that it was conducting its own
analysis of that evidence. Where it agrees with the RPD the RAD states why. Where
it reaches a different conclusion it so states. In effect the RAD carried out
its role as set out in Huriglica.
[11]
Similarly the RAD did not unreasonably rely on
Mr. Nikkhoo’s lack of knowledge of the practice of Efran Keyhani to conclude
that, on a balance of probabilities, his belief was not genuine. Knowledge of
the religion was but one factor that was considered within the context of the
broader record. The RAD also had before it the claimed length and nature of Mr.
Nikkhoo’s practice of Efran Keyhani, the credibility concerns surrounding his claim
that Iranian authorities were seeking him out, the conclusion that the court
summons was falsified, and the inconsistency between his expressed fear and his
conduct at demonstrations. This is not a situation where the finding was based upon
the failure of the applicant to adequately respond to a religious trivia test.
[12]
Finally the RAD also reasonably concluded that
Mr. Nikkhoo had not established that he faced a risk on return to Iran as the
result of his activities in Canada. The finding was consistent with the
objective country condition evidence. Mr. Nikkhoo’s speculation to the contrary
is not a basis upon which to interfere with the decision reached by the RAD.
IV.
Conclusion
[13]
The RAD’s decision is transparent, justified and
intelligible and falls within the range of reasonable possible outcomes based
on the facts and the law. The application is dismissed.
[14]
The parties have not identified a question of
general importance for certification, and none arises.
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