Tan v. Canada (Citizenship and Immigration)

Tan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2016-07-27
Neutral citation
2016 FC 876
File numbers
IMM-243-16
Decision Content
Date: 20160727
Docket: IMM-243-16
Citation: 2016 FC 876
Ottawa, Ontario, July 27, 2016
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
JEDIDIAH IAN ZHI TAN (AKA JEDIDIAH IAN TAN ZHI AN)
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision dated December 23, 2015 of the Refugee Appeal Division (“RAD”) of the Immigration and Refugee Board of Canada. Pursuant to s 111(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), the RAD allowed the appeal, set aside the determination of the Refugee Protection Division (“RPD”) and substituted its determination that the Applicant is neither a Convention refugee nor a person in need of protection. This application for judicial review is brought pursuant to s 72(1) of the IRPA.
Background [2] The Applicant is a citizen of Singapore and was born on December 24, 1992. He entered Canada on January 23, 2015 and, shortly thereafter, sought refugee protection on the basis of the alleged persecution he faced in Singapore as a male who was granted a medical exemption from military service.
[3] More specifically, in March or April of 2013, the Applicant received notice from the Singapore Armed Forces (“SAF”) that he was to report for a medical examination in preparation for compulsory military service. At the medical examination, the Applicant informed the SAF doctor that he had been diagnosed with scoliosis, suffered back pain, had difficulty walking and could not sit down for long periods of time. Nevertheless, the Applicant was found to be medically fit for service and was required to report for training in December 2013.
[4] The Applicant claims that military training was very difficult for him and caused him to suffer greatly, both physically and psychologically. Following a series of consultations and exchanges with various medical professionals, the Applicant was notified on May 23, 2014 that he had been exempted from military service. He claims that the basis for his exemption is psychological medical grounds.
[5] Subsequent to receiving the military service exemption, the Applicant and his father received telephone calls and text messages from several SAF officers of his former platoon threatening to have him returned to continue his military training. The Applicant claims he fears his military service exemption will be revoked and he will be required to complete his national military service. Additionally, he says he faces employment discrimination due to the fact that he is required to disclose his military history when applying for jobs in Singapore.
[6] In response to an application by the Applicant pursuant to s 50 of the IRPA, the RPD found that the Applicant was a vulnerable person as his ability to present his case was severely impaired and, accordingly, ordered priority scheduling and procedural accommodations.
[7] By its decision dated May 11, 2015, the RPD found that the Applicant was a Convention refugee on the basis that he had a well-founded fear of persecution in Singapore by reason of being a member of a particular social group of men who are exempted from military service. It further found that state protection would not be reasonably forthcoming to the Applicant and that he did not have an internal flight alternative (“IFA”).
[8] The Respondent filed an appeal of the RPD’s decision, which decision the RAD subsequently set aside.
Decision Under Review [9] The determinative issue before the RAD was the issue of state protection. In deciding this issue, the RAD considered the Applicant’s submission that military justice is all that would be available to him in Singapore to address all but one of the grounds of alleged persecution. However, the RAD found that the Applicant is no longer a serviceman as a result of his military service exemption and, therefore, he is entitled to redress from civilian authorities. In support of this finding, the RAD referred to documentary evidence in the record which showed that Singapore has effective mechanisms in place to address abuse and corruption in the police and armed forces. Further, should the authorities consider revocation of the Applicant’s military service exemption, he would be entitled to due process.
[10] The RAD also found that there is adequate protection for the Applicant in Singapore with respect to employment and healthcare and that it would not be objectively unreasonable for him to seek protection from the state. The RAD noted that the National Health Plan in Singapore provides affordable healthcare to all Singaporeans and that the Applicant would have access to adequate medical treatment for his physical and psychological conditions. The RAD also stated that the Applicant has adequate employment protection in Singapore on the basis that he has access to government programs such as “Job Club” which help people with mental illness obtain suitable employment.
[11] On the basis of the foregoing, the RAD determined that the Applicant failed to rebut the presumption of state protection with clear and convincing evidence. The RAD held that it was not persuaded on a balance of probabilities that the state of Singapore would not be reasonably forthcoming with adequate state protection, should the Applicant seek it. Due to its finding on state protection, the RAD found that it was not necessary to review the RPD’s further findings with respect to membership in a particular social group or discrimination versus persecution. For these reasons, the RAD found that the Applicant is not a Convention refugee or a person in need of protection under ss 96 or 97 of the IRPA.
Issues [12] The Applicant submits that the RAD’s decision is procedurally unfair as the RAD addressed issues not raised by either party to the appeal and made findings on issues that were not put to the Applicant by any party or the RPD. Further, that the RAD’s decision is unreasonable in that its factual conclusions lack transparency, justification and intelligibility.
[13] I would frame the issues as follows:
i. Did the RAD breach its duty of procedural fairness?
ii. Is the RAD’s decision reasonable?
Standard of Review [14] The parties submit that breaches of procedural fairness are reviewable on the correctness standard of review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]) and that reasonableness is the standard of review for the RAD’s decision on the issue of state protection (Dunsmuir at paras 47, 50 and 60; Bellingy v Canada (Citizenship and Immigration), 2015 FC 1252 at paras 39-40).
[15] I agree that the standard of review for questions of procedural fairness is correctness; no deference is owed to the RAD in deciding such questions (Dunsmuir at para 50). The RAD’s assessment of state protection involves questions of mixed fact and law, therefore, it attracts the reasonableness standard of review (Kandha v Canada (Citizenship and Immigration), 2016 FC 430 at para 15). On this standard the Court will only intervene if the decision is not transparent, justifiable, intelligible and within the range of possible, acceptable outcomes (Dunsmuir at para 47).
ISSUE 1: Did the RAD breach its duty of procedural fairness? Applicant’s Submissions [16] The Applicant submits that when a claimant has succeeded before the RPD their evidence and documentation has already been found to be sufficient and reliable. And, because a claimant cannot be expected to anticipate and address matters that the Minister does not raise on appeal, the RAD is bound by the issues raised within the appeal records. Issues not raised or challenged by the Minister are considered settled. The Applicant submits that the RAD rendered its decision relying on issues not raised by either party to the appeal and/or issues that were not raised by either party before the RPD. According to the Applicant, this was procedurally unfair as it precluded him from addressing these matters. Further, this approach was beyond the RAD’s jurisdiction as, when additional evidence is required, the RAD is obliged to return the claim to the RPD for redetermination.
[17] While the ‘theme’ of state protection was known to the Applicant, the arguments and considerations raised by the Respondent were not those that the RAD actually addressed. If the RAD had an issue with how the evidence was assessed, apart from the issues raised by the Respondent, it was incumbent on the RAD to advise the parties and to provide an opportunity for them to provide new evidence and submissions on the issue (Ching v Canada (Citizenship and Immigration), 2015 FC 725 at para 71 [Ching]; Ojarikre v Canada (Citizenship and Immigration), 2015 FC 896 at paras 19-20 and 23 [Ojarikre]; Jianzhu v Canada (Citizenship and Immigration), 2015 FC 551 at para 12 [Jianzhu]).
[18] The Applicant points to the following factual conclusions relied upon by the RAD in support of its decision on the issue of state protection that were not put to him for comment:
• The RAD determined that the Applicant’s military service exemption was permanent, whereas the RPD determined that it was revocable. This was not raised by either party to the appeal;
• The RAD determined that the Applicant would have employment protection through government programs such as Job Club. The Applicant had not been asked about Job Club when appearing before the RPD and the issue was not raised by either party to the appeal; and
• The RAD determined that the Applicant is entitled to redress through civilian authorities as he has been exempted from military service. However, he was not asked about this during the RPD hearing and the issue was not raised by either party to the appeal.
Respondent’s Submissions [19] The Respondent submits that, contrary to the Applicant’s contention that the RAD unfairly caught him by surprise by making findings on new issues, all three of the examples of new issues given by the Applicant were findings made by the RAD in response to the Applicant’s arguments on appeal (Ibrahim v Canada (Citizenship and Immigration), 2016 FC 380 at paras 24-30 [Ibrahim]). For that reason, the jurisprudence relied upon by the Applicant is distinguishable on its facts. Nor is this a situation where the RPD canvassed an issue but did not rely upon that issue in its decision.
[20] The Respondent contends that there is nothing unfair about the RAD pointing to evidence of Job Club and other such organizations which assist persons with mental health issues to find employment. The RAD pointed to this evidence directly in response to the Applicant’s arguments of employment discrimination. In assessing that argument the RAD considered the evidence and the submissions advanced by the Applicant, but it was also entitled to consider countervailing evidence before the RPD. Furthermore, the RAD has a statutory duty to conduct the appeal on the basis of the record before the RPD (IRPA, s 110(3)) and it is not limited to the evidence contained in the RAD appeal records. There is also no error in taking into account other evidence in the record before the RPD which was not flagged by either party (Sary v Canada (Citizenship and Immigration), 2016 FC 178 at paras 30-31 [Sary]).
[21] Moreover, in refugee matters there is no ‘case to be met’. The onus and burden lies with the claimant to make out their claim for refugee protection. Although the Respondent brought the appeal before the RAD, the RAD’s role is the same namely, to conduct an independent assessment of the claim on the basis of the record before the RPD. Further, it is well-established that a refugee claim may be decided solely on the basis of state protection (Canada (Citizenship and Immigration) v Foster, 2016 FC 130 at paras 24-28 [Foster]). This is so even when the psychological profile of the claimant reasonably justifies their subjective fear of availing state protection (Foster at paras 12, 21, 24-28).
Analysis [22] It is useful to first set out the legislative framework for appeals to the RAD.
[23] Section 110 of the IRPA states that a person or the Minister may appeal on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person’s claim for refugee protection (s 110 (1)). The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents (s110 (1.1)). The RAD must proceed without a hearing, “on the basis of the record of the proceedings of the Refugee Protection Division”, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal (s 110(3)). However, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection (s 110(4)). The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim; and if accepted, would justify allowing or rejecting the refugee protection claim (s 110(6)).
[24] The RAD must make a decision in accordance with s 111:
111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés.
(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that
(2) Elle ne peut procéder au renvoi que si elle estime, à la fois :
(a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait;
(b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.
b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.
[25] The Refugee Appeal Division Rules, SOR/2012-257, (RAD Rules) address what is required to bring and perfect an appeal.
[26] Part 1 sets out the rules applicable to appeals made by a person who is the subject of the appeal, including that:
3(3) The appellant’s record must contain the following documents, on consecutively numbered pages, in the following order:
3(3) Le dossier de l’appelant comporte les documents ci-après, sur des pages numérotées consécutivement, dans l’ordre qui suit :
(a) the notice of decision and written reasons for the Refugee Protection Division’s decision that the appellant is appealing;
a) l’avis de décision et les motifs écrits de la décision de la Section de la protection des réfugiés portée en appel;
(b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
b) la transcription complète ou partielle de l’audience de la Section de la protection des réfugiés, si l’appelant veut l’invoquer dans l’appel, accompagnée d’une déclaration signée par le transcripteur dans laquelle celui-ci indique son nom et atteste que la transcription est fidèle;
(c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal;
c) tout document que la Section de la protection des réfugiés a refusé d’admettre en preuve pendant ou après l’audience, si l’appelant veut l’invoquer dans l’appel;
(d) a written statement indicating
d) une déclaration écrite indiquant :
(i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act,
(i) si l’appelant invoque des éléments de preuve visés au paragraphe 110(4) de la Loi,
(ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and
(ii) si l’appelant demande la tenue de l’audience visée au paragraphe 110(6) de la Loi et, le cas échéant, s’il fait une demande de changement de lieu de l’audience en vertu de la règle 66,
(iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter;
(iii) la langue et, le cas échéant, le dialecte à interpréter, si la Section décide qu’une audience est nécessaire et que l’appelant a besoin d’un interprète;
(e) any documentary evidence that the appellant wants to rely on in the appeal;
e) tout élément de preuve documentaire que l’appelant veut invoquer dans l’appel;
(f) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and
f) toute loi, jurisprudence ou autre autorité légale que l’appelant veut invoquer dans l’appel;
(g) a memorandum that includes full and detailed submissions regarding
g) un mémoire qui inclut des observations complètes et détaillées concernant :
(i) the errors that are the grounds of the appeal,
(i) les erreurs commises qui constituent les motifs d’appel,
(ii) where the errors are located in the written reasons for the Refugee Protection Division’s decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing,
(ii) l’endroit où se trouvent ces erreurs dans les motifs écrits de la décision de la Section de la protection des réfugiés portée en appel ou dans la transcription ou dans tout enregistrement audio ou électronique de l’audience tenue devant cette dernière,
(iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant,
(iii) la façon dont les éléments de preuve documentaire visés à l’alinéa e) sont conformes aux exigences du paragraphe 110(4) de la Loi et la façon dont ils sont liés à l’appelant,
(iv) the decision the appellant wants the Division to make, and
(iv) la décision recherchée,
(v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held.
(v) les motifs pour lesquels la Section devrait tenir l’audience visée au paragraphe 110(6) de la Loi, si l’appelant en fait la demande.
[27] Similarly, and relevant to this matter, Part 2 of the RAD Rules deals with the rules applicable to appeals made by the Minister, including:
9 (1) To perfect an appeal in accordance with subsection 110(1.1) of the Act, the Minister must provide, first to the person who is the subject of the appeal and then to the Division, any supporting documents that the Minister wants to rely on in the appeal.
9 (1) Pour mettre en état un appel aux termes du paragraphe 110(1.1) de la Loi, le ministre transmet à la personne en cause, puis à la Section, tout document à l’appui qu’il veut invoquer dans l’appel.
(2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the person who is the subject of the appeal and then to the Division, the appellant’s record containing the following documents, on consecutively numbered pages, in the following order:
(2) En plus des documents visés au paragraphe (1), le ministre peut transmettre à la personne en cause, puis à la Section, le dossier de l’appelant qui comporte les documents ci-après, sur des pages numérotées consécutivement, dans l’ordre qui suit :
(a) the notice of decision and written reasons for the Refugee Protection Division’s decision that the Minister is appealing;
a) l’avis de décision et les motifs écrits de la décision de la Section de la protection des réfugiés portée en appel;
(b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
b) la transcription complète ou partielle de l’audience de la Section de la protection des réfugiés, si le ministre veut l’invoquer dans l’appel, accompagnée d’une déclaration signée par le transcripteur dans laquelle celui-ci indique son nom et atteste que la transcription est fidèle;
(c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Minister wants to rely on the documents in the appeal;
c) tout document que la Section de la protection des réfugiés a refusé d’admettre en preuve pendant ou après l’audience, si le ministre veut l’invoquer dans l’appel;
(d) a written statement indicating
d) une déclaration écrite indiquant :
(i) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence, and
(i) si le ministre veut invoquer des éléments de preuve documentaire visés au paragraphe 110(3) de la Loi et la pertinence de ces éléments de preuve,
(ii) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing;
(ii) si le ministre demande la tenue de l’audience visée au paragraphe 110(6) de la Loi et, le cas échéant, les motifs pour lesquels la Section devrait en tenir une et s’il fait une demande de changement de lieu de l’audience en vertu de la règle 66;
(e) any law, case law or other legal authority that the Minister wants to rely on in the appeal; and
e) toute loi, jurisprudence ou autre autorité légale que le ministre veut invoquer dans l’appel;
(f) a memorandum that includes full and detailed submissions regarding
f) un mémoire qui inclut des observations complètes et détaillées concernant :
(i) the errors that are the grounds of the appeal,
(i) les erreurs commises qui constituent les motifs d’appel,
(ii) where the errors are located in the written reasons for the Refugee Protection Division’s decision that the Minister is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, and
(ii) l’endroit où se trouvent ces erreurs dans les motifs écrits de la décision de la Section de la protection des réfugiés portée en appel ou dans la transcription ou dans tout enregistrement audio ou électronique de l’audience tenue devant cette dernière,
(iii) the decision the Minister wants the Division to make.
(iii) la décision recherchée.
…
…
10 (1) To respond to an appeal, the person who is the subject of the appeal must provide, first to the Minister and then to the Division, a written notice of intent to respond, together with the respondent’s record.
10 (1) Pour répondre à un appel, la personne en cause transmet au ministre, puis à la Section, un avis écrit d’intention de répondre, accompagné du dossier de l’intimé.
…
…
(3) The respondent’s record must contain the following documents, on consecutively numbered pages, in the following order:
(3) Le dossier de l’intimé comporte les documents ci-après, sur des pages numérotées consécutivement, dans l’ordre qui suit :
(a) all or part of the transcript of the Refugee Protection Division hearing if the respondent wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
a) la transcription complète ou partielle de l’audience de la Section de la protection des réfugiés, si l’intimé veut l’invoquer dans l’appel et qu’elle n’a pas été transmise avec le dossier de l’appelant, accompagnée d’une déclaration signée par le transcripteur dans laquelle celui-ci indique son nom et atteste que la transcription est fidèle;
(b) a written statement indicating
b) une déclaration écrite indiquant :
(i) whether the respondent is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and
(i) si l’intimé demande la tenue de l’audience visée au paragraphe 110(6) de la Loi et, le cas échéant, s’il fait une demande de changement de lieu de l’audience en vertu de la règle 66,
(ii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the respondent needs an interpreter;
(ii) la langue et, le cas échéant, le dialecte à interpréter, si la Section décide qu’une audience est nécessaire et que l’intimé a besoin d’un interprète;
(c) any documentary evidence that the respondent wants to rely on in the appeal;
c) tout élément de preuve documentaire que l’intimé veut invoquer dans l’appel;
(d) any law, case law or other legal authority that the respondent wants to rely on in the appeal; and
d) toute loi, jurisprudence ou autre autorité légale que l’intimé veut invoquer dans l’appel;
(e) a memorandum that includes full and detailed submissions regarding
e) un mémoire qui inclut des observations complètes et détaillées concernant :
(i) the grounds on which the respondent is contesting the appeal,
(i) les motifs pour lesquels l’intimé conteste l’appel,
(ii) the decision the respondent wants the Division to make, and
(ii) la décision recherchée,
(iii) why the Division should hold a hearing under subsection 110(6) of the Act if the respondent is requesting that a hearing be held.
(iii) les motifs pour lesquels la Section devrait tenir l’audience visée au paragraphe 110(6) de la Loi, si l’intimé en fait la demande.
…
…
11 (1) To reply to a response by the respondent, the Minister must provide, first to the respondent and then to the Division, any documentary evidence that the Minister wants to rely on to support the reply and that was not provided at the time that the appeal was perfected or with the respondent’s record.
11 (1) Pour répliquer à une réponse de l’intimé, le ministre transmet à l’intimé, puis à la Section, tout élément de preuve documentaire qu’il veut invoquer à l’appui de sa réplique et qui n’a pas été transmis au moment où l’appel a été mis en état ou avec le dossier de l’intimé.
(2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the respondent and then to the Division, a reply record containing the following documents, on consecutively numbered pages, in the following order:
(2) En plus des documents visés au paragraphe (1), le ministre peut transmettre à l’intimé, puis à la Section, un dossier de réplique qui comporte les documents ci-après, sur des pages numérotées consécutivement, dans l’ordre qui suit :
(a) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record, if any, or the respondent’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
a) la transcription complète ou partielle de l’audience de la Section de la protection des réfugiés — n’ayant pas été transmise en même temps que le dossier de l’appelant, le cas échéant, ou le dossier de l’intimé — si le ministre veut l’invoquer à l’appui de sa réplique, accompagnée d’une déclaration signée par le transcripteur dans laquelle celui-ci indique son nom et atteste que la transcription est fidèle;
(b) any law, case law or other legal authority that the Minister wants to rely on to support the reply and that was not provided with the appellant’s record, if any, or the respondent’s record; and
b) toute loi, jurisprudence ou autre autorité légale — n’ayant pas été transmise en même temps que le dossier de l’appelant, le cas échéant, ou le dossier de l’intimé — que le ministre veut invoquer à l’appui de sa réplique;
(c) a memorandum that includes full and detailed submissions regarding
c) un mémoire qui inclut des observations complètes et détaillées concernant :
(i) only the grounds raised by the respondent, and
(i) uniquement les motifs soulevés par l’intimé,
(ii) why the Division should hold a hearing under subsection 110(6) of the Act if the Minister is requesting that a hearing be held and the Minister did not include such a request in the appellant’s record, if any, and if the Minister is requesting a hearing, whether the Minister is making an application under rule 66 to change the location of the hearing.
(ii) les motifs pour lesquels la Section devrait tenir l’audience visée au paragraphe 110(6) de la Loi, si le ministre en fait la demande et qu’il n’a pas inclus cette demande dans le dossier de l’appelant, le cas échéant, et s’il demande la tenue d’une telle audience, s’il fait une demande de changement de lieu de l’audience en vertu de la règle 66.
[28] It is also of note, as a preliminary point, that the Federal Court of Appeal in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 [Huruglica FCA] recently considered the role of the RAD in reviewing a decision of the RPD on the merits. There, Justice Gauthier held that an appeal before the RAD is not a true de novo proceeding (para 79). The role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law, and if there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set aside the RPD’s decision, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD (para 78). Justice Gauthier stated that, rather than systematically holding a second hearing on appeal, a claimant’s second “kick at the can” on appeal is to be done on the basis of the record before the RPD, except in limited cases where new evidence is admitted and the requirements of s 110(6) are fulfilled (para 97). She concluded her reasons with the following statement:
[103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.
[29] In the subject appeal before the RAD, credibility was not at issue. The RPD found the Applicant to be a credible witness and, on appeal, credibility was not raised as an issue by either party and was not addressed by the RAD. Nor was any new evidence tendered before the RAD. The RAD elected to dispose of the matter by substituting a determination which, in its opinion, should have been made. The Applicant submits, however, that the RAD raised new issues and, as he had not had an opportunity to address those new issues, he was denied procedural fairness.
[30] The jurisprudence on this issue starts with Justice Kane’s decision in Ching, where she noted that the Supreme Court of Canada in R v Mian, 2014 SCC 54 [Mian] addressed the question of what constitutes a new issue on appeal:
[67] The Court defined a “new issue” at para 30:
An issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties (see Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39) and cannot reasonably be said to stem from the issues as framed by the parties. It follows from this definition that a new issue will require notifying the parties in advance so that they are able to address it adequately. [Emphasis added]
[31] Justice Kane also noted that although the comments in Mian were made in the context of a criminal case, the principles established by the Supreme Court have been applied in the administrative context. The Supreme Court found that an appellate court has jurisdiction to raise a new issue, however, this would be rare. Additionally, the considerations regarding the discretion of appellate courts to raise new issues include whether there is a sufficient basis in the record on which to resolve the issue and whether there would be any procedural prejudice to either party (i.e. whether the parties will have the opportunity to respond). Justice Kane concluded, in the context of RAD appeals, these principles mean that:
[71] … The RAD should first consider if the issue is “new” and if failing to raise the new issue would risk injustice. If the RAD pursues the new issue, it seems clear that procedural fairness requires that the party or parties affected be given notice and an opportunity to make submissions.
[32] Further, that it is a basic principle of natural justice and procedural fairness that a party should have an opportunity to respond to new issues and concerns that will have a bearing on a decision affecting them (para 74). Justice Kane concluded that, at a minimum, the applicant in that case should have had some opportunity to respond to the RAD’s concerns regarding the RPD’s positive credibility findings, which had not been raised on appeal.
[33] In Jianzhu the RPD made no findings about the risk to the claimant based on a sur place claim. And, although that topic was not raised by the claimant on the appeal, the RAD independently evaluated it, examining the record and relying on the RPD’s credibility findings to conclude that the claimant did not have such a claim. Justice Simpson found that the RAD did not have jurisdiction to independently decide the sur place claim. Subsection 111(1)(b) of the IRPA had no application because there was no RPD decision on that point to set aside. In that situation, the RAD should have referred the sur place claim back to the RPD for a decision.
[34] Similarly, in Ojarikre, while the issue of an IFA was fully canvassed before the RPD, it made no determination on the matter. Nor was an IFA raised by either party before the RAD. In considering whether the RAD erred in deciding the appeal on this basis, Justice Annis referred to Ching and Jianzhu and concluded that the RAD did not have jurisdiction to consider an issue that was not relied upon by the RPD in its decision and, therefore, was not the subject matter of the appeal. Further, the claimant had been deprived of her statutory right under s 110(4) to submit further evidence with respect to the new issue because she was not aware that it would be the subject of the RAD’s decision. Additionally, there had been a breach of procedural fairness as the RAD raised a new issue without first providing the parties with an opportunity to file new documentary evidence and submissions.
[35] In Kwakwa v Canada (Citizenship and Immigration), 2016 FC 600 at para 24 [Kwakwa], Justice Gascon found that the RAD is entitled to make independent findings of credibility or plausibility against a claimant, without putting it before the claimant and giving him or her the opportunity to make submissions, but only in situations where the RAD does not ignore contradictory evidence or make additional findings or analyses on issues unknown to the claimant. That exception did not apply in Ching, Ojarikre and Jianzhu or in the matter before him. In Kwakwa, the RPD had not made firm conclusions on the fraudulent nature of certain documents in issue. Justice Gascon found that it was not a situation where the RAD simply assessed the evidence on file independently. Instead, the RAD identified new arguments that were not raised or addressed specifically by the RPD.
[36] Justice Gascon also distinguished the situation before him in Kwakwa from his prior decision in Sary. There, the claimant argued that the RAD breached procedural fairness by raising a new reason for undermining the claimant’s credibility and denying him the opportunity to respond. The new reason was the contradiction between the claimant’s visa file and his testimony. Justice Gascon found that the claimant’s visa application was part of the file before both the RPD and the RAD and that the claimant had referred to it in the evidence and in the factum submitted to the RAD. He concluded that there is no breach of procedural fairness when the RAD performs an independent assessment of the evidence in the record, as it did in the case before him (Haji v Canada (Citizenship and Immigration), 2015 FC 868 at paras 23 and 27 [Haji]). In Sary, similar to Haji, no new evidence was presented before the RAD and the RAD considered the RPD’s assessment of the claimant’s credibility and found it to be reasonable based on its review of the evidence.
[37] In Sary, Justice Gascon also distinguished Ching, Ojarike and Jianzhu:
[30] When pleading her case before the Court, Mr. Sary’s counsel emphasized some recent decisions rendered by the Court, including Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725 [Ching]. However, these decisions deal with situations where the RAD raised a new issue or argument in its decision, and did not give the applicant the opportunity to respond. For example, in Ching, the Court found that the RAD had reviewed the RPD’s credibility findings whereas the applicant had not raised these reasons in its appeal. It was a “new issue” and the RAD was then obliged to notify the parties and provide them with an opportunity to respond. An issue is new when it raises a new basis (beyond the grounds of appeal as framed by the parties) for potentially finding error in the decision under appeal. Similarly, in Ojarikre v. Canada (Minister of Citizenship and Immigration), 2015 FC 896 at paragraph 20 and Jianzhu v. Canada (Minister of Citizenship and Immigration), 2015 FC 551 at paragraph 12, cited by Mr. Sary, the RAD’s decision had raised issues that had not be studied by the RPD or put forward by the applicant.
[31] The situation is q