Canada (Citizenship and Immigration) v. Alazar

Canada (Citizenship and Immigration) v. Alazar
Court (s) Database
Federal Court Decisions
Date
2021-06-21
Neutral citation
2021 FC 637
File numbers
IMM-1168-20
Notes
A correction was made on September 6, 2022
Reported Decision
Decision Content
Date: 20210621
Docket: IMM-1168-20
Citation: 2021 FC 637
Ottawa, Ontario, June 21, 2021
PRESENT: Mr. Justice Norris
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
SARA MARSALA ALAZAR
SAMIEL ARAIA BEYENE
SELEMUN ARAIA BEYENE
Respondents
JUDGMENT AND REASONS
I. OVERVIEW
[1] The respondents – a mother and her two teenage sons – sought refugee protection in Canada on the basis of a fear of persecution in Eritrea due to the principal claimant’s perceived anti-government political opinions. In a decision dated August 22, 2018, the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board (“IRB”) rejected the claims because it was not satisfied that the respondents had established their personal identities as citizens of Eritrea.
[2] The respondents appealed this decision to the Refugee Appeal Division (“RAD”) of the IRB. In a decision dated January 21, 2020, the RAD concluded that the RPD had erred in its findings regarding identity. Being satisfied that the respondents had established their personal identities, the RAD then went on to find that they are Convention refugees. The RAD reached this latter conclusion because, “[a]ccording to objective country condition evidence contained in the National Documentation Package, returnees who have left illegally or have claimed asylum and are forced to return may face arbitrary arrest, detention, harsh punishments, torture, recruitment to indefinite military services or forced labour.” Consequently, the RAD set aside the RPD’s determination and substituted its own pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
[3] The Minister of Citizenship and Immigration had intervened before the RPD but did not intervene in the respondents’ appeal to the RAD.
[4] The Minister now applies under subsection 72(1) of the IRPA for judicial review of the RAD’s decision. The Minister challenges both the substance of the decision and the manner in which it was made. With respect to the substance of the decision, the Minister submits that the RAD’s findings on identity and Convention refugee status are unreasonable. The Minister also submits that the RAD did not have jurisdiction to consider the sur place aspects of the respondents’ claims. With respect to the manner in which the decision was made, the Minister submits that, if the RAD did have jurisdiction to consider the sur place aspects of the claims, it breached the requirements of procedural fairness by making a positive determination on this basis without first giving the Minister notice that this issue was in play and an opportunity to be heard.
[5] As I will explain in the reasons that follow, the Minister has not persuaded me that the RAD’s identity finding is unreasonable. Further, I do not agree with the Minister that the RAD lacked jurisdiction to consider the sur place aspects of the respondents’ claims. However, I do agree that the RAD did not comply with the requirements of procedural fairness. Since this is a sufficient basis to set aside the decision and remit the matter to a new decision maker, it is neither necessary nor appropriate to consider whether the RAD’s determination that the respondents are Convention refugees is unreasonable.
II. BACKGROUND
A. The Respondents’ Claims for Protection
[6] The grounds for seeking protection are set out in Basis of Claim forms completed by Sara Marsala Alazar, the principal claimant, on her own behalf and on behalf of her sons shortly after they arrived in Canada. Ms. Alazar also described her experiences in Eritrea and her fear of returning there in her testimony before the RPD.
[7] Ms. Alazar states that she was born in December 1970 in the City of Asmara in Eritrea. At the time, Eritrea was a province of Ethiopia. It became an independent nation in 1993. Ms. Alazar belongs to the Tigrigna ethnic group.
[8] Ms. Alazar married Araia Beyene Nablush in January 2001. Mr. Nablush was born in Asmara in July 1965. Ms. Alazar and Mr. Nablush have two sons who were born in Asmara in June 2002 and January 2006, respectively.
[9] Ms. Alazar alleges that on February 3, 2016, she and Mr. Nablush were arrested at their home by armed security agents and taken by a police vehicle to a prison close to Asmara. Ms. Alazar was eventually released on February 26, 2016. Mr. Nablush was released on May 12, 2016. While they were detained, both were interrogated and subjected to physical and verbal abuse, including torture. Both were accused of being members of the Eritrean People’s Democratic Party-Zete and of working against the Eritrean government. Ms. Alazar explained that the suspicions related mainly to her husband but she was arrested too to see if she knew anything. According to Ms. Alazar, neither she nor her husband had been politically active previously.
[10] When Ms. Alazar was released she was told to report to the police every month, to not leave Asmara without the consent of security officials, and to not be found at any public meeting. She was also told that if she failed to comply with these conditions, she would be executed. Ms. Alazar testified that she reported to police four times before leaving Eritrea.
[11] With the assistance of a smuggler, the family left Asmara by car on June 28, 2016, and crossed the border into Sudan illegally two days later. In Sudan, Mr. Nablush contacted an agent who arranged travel to Canada for Ms. Alazar and their two sons. The agent obtained false passports for them as well as airline tickets. (At the RPD hearing, Ms. Alazar testified that this had cost $35,000 USD. Family members had provided the necessary funds.) In the company of the agent, who was posing as her husband, Ms. Alazar and her sons left Khartoum on August 30, 2016, and arrived in Toronto the next day via Cairo. At the RPD hearing, Ms. Alazar testified that she never saw the passports they travelled on. The agent had held onto them throughout the trip and was the one who presented them in Toronto. Ms. Alazar testified that she was not questioned by border control officials because the agent said she did not speak English.
[12] Mr. Nablush had remained in Sudan but eventually left for Kampala, Uganda, after he was detained in Sudan. He could not accompany his family to Canada because of the ruse that the agent was Ms. Alazar’s husband. He was not able to come afterwards because he could not afford to engage another agent. He decided to wait overseas to see what happened with the refugee claims in Canada.
[13] In her Basis of Claim form, Ms. Alazar stated that she believed if she returned to Eritrea she would be arrested, imprisoned and tortured by the government because she left the country illegally, because she had made a refugee claim against Eritrea, and because she was seen as disloyal to the government.
B. The Minister’s Intervention
[14] By notice dated December 8, 2016, the Minister indicated his intent to intervene in the proceeding before the RPD in relation to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (“Refugee Convention”), identity and credibility. The notice stated that Article 1F(b) – which excludes from refugee protection anyone about whom there are serious reasons for considering that “he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” – may be engaged because it appeared that Ms. Alazar may have abducted her minor children when she travelled to Canada with them and remained here without the permission of their father. The notice also stated that the Minister “has serious concerns regarding the principal claimant’s credibility and all claimants’ identities.” As will be seen below, the Article 1F(b) concern was eventually withdrawn.
[15] A third-party Designated Representative was appointed for the minor claimants in April 2018. All three claimants were represented by a lawyer at the RPD.
[16] The hearing before the RPD took place on June 28, 2018. (A previous attendance on April 5, 2018, was adjourned on consent without the substance of the claims being addressed.) Counsel for the Minister took part in the hearing, questioning Ms. Alazar and filing documentary evidence. Counsel for the Minister also provided post-hearing written submissions, as did counsel for the respondents.
C. Evidence Relating to Article 1F(b) Exclusion
[17] Ms. Alazar testified that she left for Canada with her sons with their father’s permission; indeed, he was the one who had made all the arrangements. She and her sons have kept in regular contact with Mr. Nablush since they have been in Canada.
[18] Ms. Alazar provided a letter from Mr. Nablush in which he confirmed that he did not object to her having taken their sons to Canada or to her seeking refugee protection in Canada on their behalf. As proof of his identity, Mr. Nablush provided his Eritrean driver’s licence. (Mr. Nablush had sent his driver’s licence to Ms. Alazar in Canada but it had not arrived at the time of the RPD hearing. It was filed post-hearing without objection.)
D. Evidence of Identity
[19] The respondents did not provide any primary forms of identification to establish their personal identities. Instead, to corroborate her testimony that she and her sons are who she said they are, Ms. Alazar provided the following documentary evidence:
Copies of their respective birth certificates with translations.The birth certificates were issued by the Public Registration in the City of Asmara.All three were issued on November 25, 2009, and were numbered sequentially.Ms. Alazar testified that neither she nor her sons had had birth certificates previously.They only obtained these when her late father’s estate was being settled.They did not leave Eritrea with the birth certificates; rather, Ms. Alazar’s mother sent them to her later in Canada.
Letters from two individuals in Toronto, Hailemariam Fsshaye Hagos and Simon Hagos Berhe.Both men attested to having known Ms. Alazar in Eritrea.On the basis of interviews with these two men, the Program Coordinator with the Eritrean Canadian Community Centre of Metropolitan Toronto in turn attested in a letter that Ms. Alazar and her sons are Eritrean.None of these statements were under oath or solemn affirmation and none of the authors of the letters attended the RPD hearing.
A letter from the Chaplain of the Eritrean Catholic Ge’ez Rite Church in Toronto purporting to confirm Ms. Alazar’s Eritrean nationality and confirming her and her sons’ membership and attendance at the church.
Two photographs of family members taken in Eritrea.One depicted Ms. Alazar’s husband and their older son in 2004 or 2005.Ms. Alazar testified that she took the photograph.The other was a group photograph in which Ms. Alazar’s father and a number of other members of her family were depicted.The occasion was the acceptance of one of Ms. Alazar’s nieces into an order of nuns.Ms. Alazar was not present because she was at work that day.She did not know when the picture was taken but it was “a long time ago.”(Ms. Alazar’s father passed away in 2004.)
Two photographs of Ms. Alazar with family members taken in Eritrea.One depicted her, her parents, and her younger brother.It was taken around 1994.The other was of Ms. Alazar and her father.Ms. Alazar thought this photograph had been taken before the other one but she did not give a date.Her mother had sent all of the photographs to her in Canada.
[20] The respondents also relied on the letter from Mr. Nablush described above as evidence of their personal identities.
[21] Ms. Alazar testified that she had had a national identity card but it was taken from her when she was detained in 2016 and never returned. She did not apply for a new one while she was still in Eritrea.
[22] Ms. Alazar testified that since she had been in Canada she had not attempted to obtain photo identification from Eritrea. She stated that this was not possible because she had left the country illegally. She also testified that she did not have any other documents that would assist in establishing her identity. The family had left behind most of their belongings in the house they had been renting in Asmara and Ms. Alazar did not know what had become of them. She did not contact her former employer in Eritrea for confirmation of her employment because she did not want to cause problems for them. (Ms. Alazar testified that she had worked for the same employer for 15 years.) She was also concerned about causing problems for family members in Eritrea if she asked them to help her obtain evidence from there to establish her identity.
[23] The Designated Representative for the minor claimants related their recollections of their lives in Eritrea to the RPD. The Designated Representative stated that she had “no doubt that the boys are from Eritrea and lived there for some time.”
[24] Prior to the hearing, the Minister submitted the three birth certificates for analysis by a Canada Border Services Agency (“CBSA”) document examiner. The reports of these analyses (all dated April 12, 2018) were filed as exhibits. The reports stated that no evidence that the documents had been altered was found but all three reports were inconclusive with respect to the authenticity of the documents. The following comments were made with respect to each of the birth certificates:
The questioned document does not appear to contain any security features that would assist in determining the authenticity of the document. In addition, we do not have a specimen and/or genuine sample of this document. This limits the conclusion of my analysis and as such, my results remain inconclusive.
Further:
The physical examination of this document will not reveal whether it has been improperly issued, obtained by means of fraud or genuinely issued to a different person.
This document does not contain any recognizable security features. The print methods employed to produce this document are commercially available and therefore highly subject to illegitimate production.
This document contains no photograph, signature or biometric information to reliably link the document to the bearer and therefore does not provide reliable evidence of the bearer’s identity.
E. Post-Hearing Submissions
[25] Both the Minister and the respondents provided post-hearing written submissions. The Minister’s submissions were filed on July 13, 2018; the respondents’ were filed on July 20, 2018.
[26] After formally withdrawing the concern with respect to Article 1F(b) of the Refugee Convention, counsel for the Minister focused on concerns with respect to the claimants’ personal identities and the credibility of the claims. With respect to identity, Minister’s counsel raised a number of issues concerning the quality of the evidence of identity that was presented and concerning the absence of better evidence of identity. With respect to credibility, Minister’s counsel raised a number of issues concerning Ms. Alazar’s narrative of her experiences in Eritrea. In summary, Minister’s counsel submitted that “due to the inconsistencies, contradictions, and omissions presented by the Claimants, there are serious concerns regarding their credibility, and the credibility of their refugee claim. Additionally, the Principal Claimant cannot be regarded as a credible witness.”
[27] In written submissions on behalf of the respondents, counsel maintained that the evidence presented to the RPD was sufficient to establish their personal identities. With respect to the substance of the claims, counsel wrote the following: “It is respectfully submitted that the well-founded fear of the adult female claimant must not be forgotten in this case. Mrs. Sara Alazar provided moving and credible testimony in regard to the fact that she experienced rape and torture while in detention in Eritrea. There has been no evidence presented to contradict this oral evidence provided by Mrs. Alazar.” After referring to IRB Chairperson’s Guideline 4, counsel then continued as follows:
Further, it is submitted that the Board Member must consider the subjective fear that Mrs. Alazar would have in returning to Eritrea, should her refugee claim be rejected, given the fact that she has already experienced rape and torture in her country. To return this woman to a country in which it is well-documented that rampant human rights occur [sic], and in which she has already suffered so much, would be a travesty of justice.
[28] Counsel for the respondents did not make specific submissions regarding a fear of persecution or ill-treatment based on the fact that Ms. Alazar and her children had left Eritrea illegally or that they had sought asylum in Canada.
F. The RPD Decision
[29] The RPD rejected the respondents’ claims in a decision dated August 22, 2018. The dispositive issue was identity.
[30] The RPD concluded on a balance of probabilities that the respondents had failed to establish their identities. In summary, this conclusion was based on the following considerations:
The respondents did not present any primary forms of identification.Given the objective evidence that it is difficult to obtain Eritrean passports, the RPD found that it was reasonable that they did not have passports.The RPD noted that Ms. Alazar had explained that her national identity card was seized when she was arrested and was not returned to her.The RPD stated: “Regardless of the alleged circumstances of why the national identity card was not presented, the panel notes that the principal claimant did not proffer it as establishing her personal identity or country of nationality.”
The only documentation tendered by the respondents to establish their identities was the birth certificates.The RPD concluded that the birth certificates were not authentic and, as such, carried no weight in establishing identity.Further, the tendering of inauthentic documents undermined the respondents’ credibility.The RPD concluded that the birth certificates were not authentic for the following reasons:
o As stated in the reports of the CBSA document examiner, the birth certificates do not contain any recognizable security features.Further, there was no photograph, signature or biometric information that would link the document to the bearer.
o The reports also stated that while there was no evidence that the documents had been altered, the print methods used to produce them “are commercially available and therefore highly subject to illegitimate production.”
o An official stamp on each document that was partly in English misspelled the word “cemetery” as “cemetry”.
o Reports in the National Documentation Package confirmed the availability and prevalence of fraudulent identity documents in Eritrea and in Eritrean communities abroad.
The reasons given by Ms. Alazar for not trying to obtain other documentation to support her and her sons’ identities – she did not want to endanger her mother, her brother or her former employer – are not borne out by the evidence.Specifically, there was no evidence that Ms. Alazar’s mother or brother “were experiencing any problems at the hands of the Eritrean authorities.”This, in turn, undermined the credibility of the respondents with respect to their identities.
The letters from two community members attesting to their knowledge of Ms. Alazar were unsworn.Neither individual attended the hearing.As a result, neither the RPD nor Minister’s counsel had an opportunity to question them.Ms. Alazar had made little, if any, effort to secure their attendance despite the importance of the issues the RPD was being asked to determine, including the threshold issue of identity.The failure “to make any attempts to have the witnesses testify at this hearing significantly undermines [the respondents’] credibility regarding their personal identities.”
The RPD accepted the letters from the Eritrean Canadian Community Centre of Metropolitan Toronto and from the Geez Rite Eritrean Catholic Chaplaincy as sufficient evidence of the respondents’ Eritrean ethnicity but neither provided credible or trustworthy evidence to establish their personal identities.As a result, the RPD put very little weight on them.
The photographs tendered by Ms. Alazar “do not provide any information which would establish the principal claimant’s personal identity.”As a result, the RPD put very little weight on them.
Mr. Nablush’s driver’s licence was tendered to corroborate the identity of the author of the letter giving permission for the children to remain in Canada but no documentation had been tendered to establish that Ms. Alazar and Mr. Nablush are in fact married.Absent other evidence to establish the respondents’ personal identities, Mr. Nablush’s driver’s licence “does not provide credible or trustworthy evidence to assist in that regard” and, accordingly, was given little weight by the RPD.
In summary, the RPD had “concerns regarding the identity documentation provided by the claimants in support of their identities and there is reason to doubt the credibility and reliability of the other documentation provided by the claimants.Looking at the totality of the evidence, the panel finds that the claimants have not established their personal identities on a balance of probabilities.”
[31] Since identity is a threshold issue, the failure to establish it meant that the claims must fail. As a result, the RPD did not address the substance of the claims in any way before rejecting them.
G. The Appeal to the RAD
[32] By Notice of Appeal dated September 7, 2018, the respondents commenced an appeal to the RAD. They were represented by counsel from the same law office as previously.
[33] In support of their appeal, the respondents tendered an affidavit from Ms. Alazar which reiterated her claim for protection based on her perceived political opinion, the fact that she had left Eritrea illegally and in violation of her conditions of release, and the fact that she had sought asylum in Canada. Attached as exhibits to the affidavit were statutory declarations from the two individuals in Toronto who had previously provided letters attesting to their knowledge of Ms. Alazar in Eritrea (see paragraph 30, above). Both declarants explained how they had known Ms. Alazar in Eritrea as well as why they had not attended the RPD hearing (one could not take time off work, the other had been difficult to reach because he had been very busy at work). Also attached as exhibits were photographs which Ms. Alazar attested were of her wedding to Mr. Nablush as well as additional family photographs.
[34] In the statement required by subrule 3(3)(b) of the Refugee Appeal Division Rules, SOR/2012-257 (“RAD Rules”), the respondents indicated that they were seeking the admission of new evidence under subsection 110(4) of the IRPA (i.e. the evidence summarized in the previous paragraph) and that they were requesting a hearing if the RAD impugned the credibility of Ms. Alazar’s declarations in her affidavit, if there are “concerns” about the new evidence, “and/or if contrary sworn testimony is admitted by the Division from another party which should be the subject of cross-examination by the Appellant’s [sic] counsel.”
[35] In their written submissions in support of the appeal, the respondents contended that the new evidence met the test for admission and that it “further establishes Ms. Alazar’s identity on the balance of probabilities.” The respondents also contended that, separate and apart from the new evidence, the RPD had erred in the analysis of the evidence leading to the conclusion that they had failed to establish their identities. Several alleged errors were identified. Finally, the respondents framed their request for relief as follows:
The Appellant [sic] requests that, based on the arguments detailed above, the Refugee Appeal Division (“RAD”) quash the decision of the RPD and return the matter for a new hearing or that the RAD substitute its own positive determination in the stead of the RPD’s decision. The RPD decision in the present case made findings that are refuted by the new evidence. As well the RPD’s findings about the Appellant’s [sic] birth certificate are erroneous as outlined above.
[36] As required by subrule 3(2) of the RAD Rules, a copy of the Record was provided to the Minister.
[37] The Minister did not intervene in the appeal.
III. DECISION UNDER REVIEW
A. The Admissibility of the New Evidence
[38] The RAD found that the statutory declaration from Mr. Hagos met the test for admission under subsection 110(4) of the IRPA while the one from Mr. Berhe did not. The RAD noted that both statutory declarations repeated the details from the declarants’ earlier letters. The RAD also found in respect of both statutory declarations that they were “provided in response to RPD findings, and therefore could not have reasonably been expected to have been presented at the time of the rejection of [the] claims.” However, because Mr. Berhe had provided a different explanation for why he did not attend the RPD hearing than Ms. Alazar had offered (he said they had been unable to connect because he was too busy at work while she said she only saw him occasionally at church and never mentioned the hearing), the RAD found that his statutory declaration lacked credibility and, consequently, was inadmissible. (The RAD noted that it would still consider Mr. Berhe’s unsworn letter, which was part of the record from the RPD.) On the other hand, Mr. Hagos’s explanation for why he did not attend the RPD hearing was consistent with that offered by Ms. Alazar at the hearing and, therefore, was credible. Accordingly, his statutory declaration met the test for new evidence under subsection 110(4) of the IRPA.
[39] The RAD also admitted the additional photographs tendered by the respondents. The RAD agreed with the respondents that the photographs of Ms. Alazar with her husband were new because they were in response to the RPD’s concerns during the hearing that Ms. Alazar did not provide any such photographs. The RAD accepted all the additional photographs because they “could not have reasonably been expected to have been presented at the time of the rejection of the claims.”
[40] Despite admitting the new evidence, the RAD denied the respondents’ request for a hearing. The RAD concluded under subsection 110(6) of the IRPA that a hearing was not warranted because, while the new evidence was relevant, it would not justify allowing or rejecting the claims if accepted.
B. The RPD’s Errors
[41] The RAD agreed with the respondents that the RPD erred in its assessment of their birth certificates, in drawing a negative inference from their failure to obtain better identity documents from family members in Eritrea, and in its assessment of Mr. Nablush’s driver’s licence.
[42] With respect to the birth certificates, the RAD agreed with the respondents that it was an error for the RPD to make a finding of inauthenticity on the basis of the general prevalence of fraudulent documents. As well, there was no evidence that a genuine Eritrean birth certificate would have had security features that were missing from the ones that were tendered. Further, “the misspelling of a word on a document coming from a country where English is not a first language should not be used to impugn its credibility.” For its part, the RAD could see no basis for finding that the birth certificates are not authentic.
[43] With respect to the failure to seek the assistance of family members in Eritrea, the RAD found that Ms. Alazar’s explanation for why she did not enlist her family to help her was credible in light of objective country condition evidence demonstrating the risks to family members of persons who have fled the country. The RAD found that the RPD had erred in drawing a negative inference on this basis.
[44] With respect to Mr. Nablush’s driver’s licence, the RAD found that Ms. Alazar had established on a balance of probabilities that she is married to Mr. Nablush. This finding was based on Ms. Alazar’s testimony at the RPD, the letter from Mr. Nablush that was accepted by the RPD, and the new evidence in the form of photographs of their wedding. Mr. Nablush’s driver’s licence, in turn, “supports the [respondents’] overall identity and presence of the family in Eritrea” during the material time. The RAD found that the RPD erred in concluding otherwise.
C. The RAD’s Finding on Identity
[45] On the basis of the evidence before it, the RAD found that the respondents had established their claimed identities as Eritrean citizens.
D. The Refugee Determination
[46] In their entirety, the RAD’s reasons for finding the respondents to be Convention refugees are the following:
As the Appellants have established their identities, I must now assess if they face a well-founded fear of persecution or a risk to life if they return to Eritrea. According to objective country condition evidence contained in the National Documentation Package, returnees who have left illegally or have claimed asylum and are forced to return may face arbitrary arrest, detention, harsh punishments, torture, recruitment to indefinite military services or forced labour [here the RAD cites a June 14, 2017, IRB Response to Information Request entitled “Eritrea: Situation of people returning to the country after they either spent time, claimed refugee status, or were seeking asylum abroad (July 2015-May 2017)]. As a result, I find that the Appellants do have a well-founded fear of persecution should they be forced to return to Eritrea. Because the state is the agent of persecution, they have no internal flight alternative available.
[47] Accordingly, the RAD allowed the appeal and, pursuant to paragraph 111(1)(b) of the IRPA, set aside the determination of the RPD and substituted its own determination that the respondents are Convention refugees.
IV. STANDARD OF REVIEW
[48] It is well-established that the substance of the RAD’s decision is reviewed on a reasonableness standard (Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 35). This includes a finding with respect to identity, a fact-driven determination (Denis v Canada (Citizenship and Immigration), 2018 FC 1182 at para 5; see also pre-RAD jurisprudence concerning the review of identity findings such as Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at para 48, and Su v Canada (Citizenship and Immigration), 2012 FC 743 at para 5).
[49] That this is the appropriate standard of review has been reinforced by Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65. Reasonableness is now the presumptive standard of review for administrative decisions, subject to specific exceptions “only where required by a clear indication of legislative intent or by the rule of law” (Vavilov at para 10). There is no basis for derogating from this presumption here.
[50] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). A decision that displays these qualities is entitled to deference from the reviewing court (ibid.).
[51] As discussed in Vavilov, the exercise of public power “must be justified, intelligible and transparent, not in the abstract but to the individuals subject to it” (at para 95). For this reason, an administrative decision maker has a responsibility “to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion” (Vavilov at para 96).
[52] As the applicant, the onus is on the Minister to demonstrate that the RAD’s decision is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). Importantly, when applying the reasonableness standard, it is not the role of the reviewing court to reweigh or reassess the evidence considered by the decision maker or to interfere with factual findings unless there are exceptional circumstances (Vavilov at para 125).
[53] As noted above, the Minister challenges the RAD’s decision in part on the basis that it did not have jurisdiction to consider the sur place aspect of the claims. According to the Minister, having found material errors in the RPD’s identity findings, the RAD was required to refer the matter to the RPD for re-determination. This issue was not raised before the RAD and, as a result, it is not addressed in the RAD’s decision.
[54] The majority in Vavilov held that the rule of law requires courts to apply the standard of correctness to certain types of legal questions including “questions regarding the jurisdictional boundaries between two or more administrative bodies” (at para 53; see also paras 63 to 64). This strongly suggests that questions about the RAD’s jurisdiction to determine certain issues itself as opposed to referring the matter to the RPD should be answered under a correctness standard. However, for present purposes, it is not necessary to come to a definitive conclusion about this. Even approaching the issue on the most favourable basis from the Minister’s perspective and applying a correctness standard of review, as I explain below, the Minister has not persuaded me that the RAD did not have jurisdiction to consider the sur place aspects of the claims.
[55] Finally, with regard to the procedure followed by the RAD, there is no dispute here concerning how a reviewing court should determine whether the requirements of procedural fairness were met. The reviewing court must conduct its own analysis of the process followed by the decision maker and determine for itself whether the process was fair having regard to all the relevant circumstances, including those identified in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21 to 28: see Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at para 54, and Elson v Canada (Attorney General), 2019 FCA 27 at para 31. This is functionally the same as applying the correctness standard of review: see Canadian Pacific Railway Co at paras 49-56 and Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35. The burden is on the Minister to demonstrate that the requirements of procedural fairness were not met.
V. ISSUES
[56] I would frame the issues raised in this application for judicial review as follows:
a) Is the RAD’s determination that the respondents had established their identities as citizens of Eritrea unreasonable?
b) Did the RAD have jurisdiction to consider the sur place claims?
c) Did the RAD breach the requirements of procedural fairness by determining that the respondents are Convention refugees sur place without first giving the Minister notice that this issue was in play and an opportunity to be heard?
d) Is the RAD’s determination that the respondents are Convention refugees unreasonable?
VI. ANALYSIS
A. Is the RAD’s determination that the respondents had established their identities as citizens of Eritrea unreasonable?
[57] The Minister submits that the RAD’s identity findings are unreasonable because the RAD failed to address two arguments made by the Minister at the RPD – namely, that Ms. Alazar’s explanation for why she did not have a national identity card was implausible and that her claim to know nothing about the passports she and her sons had travelled on was not credible.
[58] I do not agree. It is well-established that a decision maker is not required to address every argument that arises on the record (Vavilov at para 91, citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at para 16). This latitude is especially apt when, as is the case here, the arguments in question were not made on the appeal to the RAD but only earlier in the process, to the RPD. The RPD did not adopt those arguments in its reasons and, as a result, they were not addressed in the respondents’ submissions to the RAD. As the Supreme Court observes in Vavilov, the review of an administrative decision “can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings” (at para 91).
[59] In any event, these arguments are peripheral to the core issues relating to the question of identity in this case. As it was required to do, the RAD made its own findings on identity because, on a correctness standard, it found that the RPD had erred in several material respects. The Minister has not attempted to demonstrate that the RPD did not commit the errors identified by the RAD. The RAD also based its identity findings in part on the new evidence it admitted on appeal and the Minister has not challenged the RAD’s new evidence rulings, either. Bearing in mind that it is not my role to reweigh evidence and that deference is owed to the decision maker on this issue, the Minister has not persuaded me that there is any basis to interfere with the RAD’s findings on identity.
B. Did the RAD have jurisdiction to consider the sur place claims?
[60] The Minister submits that the RAD did not have jurisdiction to consider the respondents’ sur place claims and, consequently, committed a reviewable error in determining the respondents to be Convention refugees on this basis. As I will explain, I do not agree. Before doing so, however, it may be helpful to begin by examining more closely the nature of the respondents’ claims for protection.
[61] Typically, a refugee will leave their home country because of a fear of being persecuted there. Indeed, this is exactly what Ms. Alazar says she did. While this sequence of events may be typical, it is not required in order to be recognized as a Convention refugee. An individual who, when they are abroad, finds that they cannot safely return to their home country is referred to as a refugee sur place. For example, a fear of persecution can arise as a result of a regime change that occurred while the claimant was working or studying abroad. Similarly, political activities engaged in by a claimant while they were elsewhere may put them at risk should they return to their country of nationality. As Hathaway and Foster explain, the present tense of Article 1A(2) of the Refugee Convention – “is outside the country of his nationality” (which is also found in paragraph 96(a) of the IRPA) – “ensures that all persons compelled to remain outside their own country – whether already present in, or forced to flee to, a foreign state – are equally entitled to benefit from the surrogate international protection of refugee law” (James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed) (Cambridge, UK: Cambridge University Press, 2014) at 75-76). See also UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (Reissued February 2019) at paras 94 to 96.
[62] It is not always easy (or even necessary) to draw a bright line between sur place claims and others. In the present case, Ms. Alazar claimed that she was at risk because of her suspected political sympathies (for which she was arbitrarily detained and subjected to serious abuse while she was in Eritrea). This was the principal basis of her claim for protection. She also claimed that she was at risk because she left Eritrea