Date: 20241129

Docket: IMM-7531-23

Citation: 2024 FC 1926

Calgary, Alberta, November 29, 2024

PRESENT: Justice Andrew D. Little

JUDGMENT AND REASONS

[1] The applicant applied for judicial review of a decision by the Refugee Appeal Division (the “RAD”) dated May 24, 2023.

[2] The RAD dismissed the applicant’s appeal from the Refugee Protection Division (the “RPD”). Both concluded that the applicant is not a Convention Refugee and not a person in need of protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”) because he is excluded from refugee protection under Article 1E of the Refugee Convention and section 98 of the IRPA.

[3] The applicant contended that the RAD’s decision was unreasonable and should be set aside, applying the principles in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563.

[4] For the reasons below, the application is dismissed.

I. Facts and Events Leading to this Application

[5] The applicant is a citizen of Pakistan. His claim for IRPA protection was based on a fear of the Tehrik-e-Taliban in Pakistan because of threats against him arising from his work advocating for religious minorities and promoting COVID-19 vaccines in his community.

[6] By decision dated January 30, 2023, the RPD rejected the applicant’s claim because it concluded that the applicant was excluded from refugee protection because of his status in Italy. The RPD applied the test set out in Zeng v. Canada (Minister of Citizenship and Immigration), 2010 FCA 118, [2011] 4 FCR 3, at para 28. While the applicant did not have status in Italy that was substantially similar to an Italian national at the time of the hearing, the RPD concluded that he previously had that status and lost it voluntarily by coming to Canada. According to the RPD’s decision, the applicant still had avenues to regain that status and his behaviour was consistent with “asylum shopping”.

[7] On appeal to the RAD, the applicant argued that he did not have permanent status in Italy. Although he testified before the RPD that he had permanent status, he filed an affidavit on the appeal in which he advised that his testimony was mistaken and based on (allegedly erroneous) advice given to him by his former counsel in the RPD proceedings. Based on country evidence and evidence related to status cards issued to him by the Italian government, the applicant argued to the RAD that he had only temporary status in Italy and was therefore not excluded by Article 1E.

[8] The RAD did not agree with the applicant’s position that the RPD erred by finding that he had an Italian permanent resident card. The RAD considered both the applicant’s testimony and the evidence related to the applicant’s Italian cards. The RAD concluded that the RPD was correct to find that the applicant was excluded under Article 1E.

[9] The applicant now challenges the RAD’s decision.

II. Analysis

A. Standard of Review

[10] The standard of review of the RAD’s substantive decision is reasonableness, as described in Vavilov. The onus is on the applicant to demonstrate that the decision is unreasonable: Vavilov, at paras 75 and 100.

[11] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63; Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Mason, at paras 8, 59-61, 66; Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194.

[12] It is not the role of the Court to re-assess or re-weigh the evidence, or to provide its own view of the merits. Thus, it is not permissible for the Court to come to its own view of the merits of the application and then measure the impugned decision against the Court’s own assessment: Mason, at para 62; Vavilov, at paras 83, 125; Delios v. Canada (Attorney General), 2015 FCA 117, at para 28. With respect to the factual constraints in the evidence, the Court may intervene only in limited circumstances, for example when the decision maker has fundamentally misapprehended the evidence before it, ignored critical evidence, made findings without any rational supporting evidence or failed to account for evidence before it that ran counter to its conclusion: Vavilov, at para 126; Federal Courts Act, paragraph 18.1(4)(d); Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93, at paras 115-117; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, at para 78.

[13] To intervene, the reviewing court must be satisfied that there are “sufficiently serious shortcomings” in the decision, such that it does not exhibit sufficient justification, intelligibility and transparency. Flaws or shortcomings must be more than a “minor misstep”; the problem must be sufficiently central or significant to the outcome to render the decision unreasonable: Vavilov, at para 100.

B. Analysis

[14] On this application for judicial review, the applicant raised the following arguments to challenge the reasonableness of the RAD’s decision:

• a)The RAD did not perform an independent analysis of the evidence, as it was required to do; and

• b)The RAD misunderstood or ignored the applicant’s affidavit evidence, improperly applied country information and misclassified the applicant’s Italian status card(s), and failed to provide an explanation for why it did not accept his testimony by affidavit on the appeal.

[15] I conclude that the RAD’s decision was reasonable. I find no basis for the Court to set aside the RAD’s decision on these grounds, applying the principles in Vavilov.

(1) The RAD performed an independent analysis of the evidence

[16] The applicant argued that the RAD did not carry out its proper role on appeal by conducting an independent analysis of the evidence, and instead, merely affirmed the reasoning of the RPD.

[17] This position is untenable, given the RAD’s 50-paragraph analysis. That analysis set out the correct test from Zeng (RAD’s reasons, paragraph 23), analyzed the applicant’s testimony about his status in Italy and the cards issued to him (paragraphs 25-38), assessed the applicant’s Italian cards and his arguments about the country evidence (paragraphs 28, 37, 39-42) and considered whether the RPD was correct in applying the balance of the Zeng test (paras 43-47). The RAD described its role as “to look at all the evidence and decide if the RPD made the correct decision”. It adequately performed that role.

(2) The RAD did not make a reviewable error relating to the evidence

[18] The applicant’s written submissions effectively re-argued the merits of his position before the RAD, that on the basis of his affidavit filed on appeal and a correct understanding of the evidence related to his Italian status card, he had temporary (not permanent) status in Italy. As noted above, it is not the role of this Court to review the evidence anew and provide its own views on the merits of these issues: Vavilov, at paras 83, 125.

[19] I am not persuaded that the RAD made a reviewable error by failing to respect the factual constraints in the evidence. There was considerable debate before the RPD and the RAD about what kinds of cards the applicant held at different times, what status the cards conveyed on him and what card was taken from the applicant on his re-entry to Italy in 2021. In a long passage of questions and answers quoted by the RAD, the applicant testified repeatedly before the RPD that he had a card that gave him permanent status in Italy. He referred to a card that Italian officials took from him when he returned to Italy in 2021.

[20] The RAD reviewed the evidence and determined the nature of the status cards, and which card was taken from the applicant at the border. The RAD’s analysis referred to country evidence from the National Documentation Package for Italy. The applicant submitted that the RAD erroneously misclassified the status card given to the applicant and that properly classified, he only held a card gave him temporary status (consistent with his testimony on appeal).

[21] The applicant has not persuaded me that it was not open to the RAD to reach the conclusions and overall decision it did. The applicant has not shown that the RAD fundamentally misapprehended the evidence about his status cards or the applicable country information.

[22] The applicant submitted that the RAD disregarded his affidavit evidence that he “always believed that [his] residency card only conveyed temporary status in Italy” and that he was mistaken when he testified at the RPD hearing and said that he had permanent status in Italy. The applicant argued that the RAD provided no explanation for why it ignored his appeal evidence.

[23] I do not agree. The RAD’s reasons show that it was aware of the affidavit and the contents relied on by the applicant in this Court. The RAD stated in its reasons:

[33] I am not persuaded by the Appellant’s argument on appeal that he was granted temporary status only in the form of a Sussidiaria and the RPD Member erred by attributing a particular status (permanent residence) to him that he did not have as the evidence about him having permanent residence status came from the Appellant himself and it is reasonable to expect that he would know and be consistent about the status he obtained.

[34] The Appellant contends on appeal that he always believed his residency card (the card disclosed after the [RPD] hearing) only conveyed temporary status in Italy and that he only testified at the hearing about it being a permanent card because his former Counsel (who represented him at the hearing) had advised him that in Canada, it was considered to have conveyed permanent resident status. He also indicates that he had given this card to his former Counsel to disclose to the RPD and was unaware that it had not been submitted for the hearing. I am also not persuaded by this.

[35] Had the Appellant always understood his status to be temporary, he ought to have said this and if the card that he had and/or his status never changed from that of “Sussidiaria” or subsidiary protection, it is not credible that he would have testified as he did; […]

[24] While the RAD did not expressly attribute these passages to the applicant’s affidavit, the RAD used language that in part tracked the relevant aspects of the applicant’s affidavit on appeal (compare paragraph 34 of the RAD’s reasons immediately above, with the quotation from the applicant’s affidavit in paragraph 21 above). Furthermore, much of the applicant’s affidavit on appeal consisted of information that was not actually evidence, but instead described arguments to be made on the appeal sourced from his appeal counsel on information and belief.

[25] The RAD’s reasons were responsive to the applicant’s position and his affidavit evidence that he was mistaken during his RPD testimony, and adequately explained why the RAD member disagreed with his position.

III. Conclusion

[26] The applicant has not demonstrated that the RAD made a reviewable error under Vavilov principles. The application is therefore dismissed.

[27] Neither party proposed a question for certification and none arises.

JUDGMENT in IMM-7531-23

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. No question is certified under paragraph 74(d) of the Immigration and Refugee Protection Act.

"Andrew D. Little"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: