TB3-09431

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB3-09431 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXX XXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 31, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Douglas Lehrer Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister B. Sachs-Syer Minister's Representative Conseil du (de la) ministre REASONS AND DECISION [1] The Minister of Citizenship and Immigration Canada (the Minister) appeals a decision of the Refugee Protection Division (RPD) granting refugee protection to XXX XXX (the Respondent), a citizen of China. The Minister has submitted no new evidence in support of this appeal, and asks that the Refugee Appeal Division (RAD) set aside the RPD's determination and refer the matter back to the RPD for redetermination. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Respondent is a citizen of China who is married to a national of the Netherlands. Together they have two children, who are Dutch citizens. The Respondent alleged to the RPD that she was abused by her husband, both in China and in the United Arab Emirates, where they had temporary resident status because of her husband's work. The Respondent's husband abandoned her and the children in 2007, and she has had sporadic contact since then, including threatening e-mails. She and the children came to Canada in XXXX of 2012 and made refugee claims in September of 2013. [4] Those applications for refugee protection were heard by the RPD on November 22, 2013. By a decision of December 5, 2013, the RPD found that the children were excluded from refugee protection by virtue of Article 1E of the refugee Convention. The panel also determined that the Respondent is both a Convention refugee and a person in need of protection. [5] The Minister argues that the RPD erred by considering the Respondent's refugee claim against the United Arab Emirates (UAE) instead of China, and by failing to analyze whether she can expect adequate state protection in China. [6] The Respondent submits that the RPD did assess her claim against China, and it considered her risk there. She acknowledges that the panel did not discuss the issue of state protection in its reasons, but she points out that the issue was considered in the refugee hearing, and that there was sufficient evidence before the RPD to support a finding that she cannot expect adequate state protection. The Respondent asks the RAD to dismiss this appeal. ANALYSIS Standard of Review [7] The Minister alleges that the RPD considered the wrong country of reference. In the RAD's view, this raises a question of law, as the Section 96 assessment was made against a country of which the Respondent is not a national, and not against the country of which she is a national. The issue of state protection is incorporated into the Section 96 definition of a Convention refugee, and the allegation that the RPD entirely failed to address state protection also raises a question of law. [8] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [9] The Minister makes no submission on the appropriate standard of review to be applied here. The Respondent submits that the RAD has consistently applied a deferential standard to factual determinations made by the RPD, and, as such, the RPD's decision should be reviewed on a standard of reasonableness. In the Respondent's view, the RAD should defer to the decision unless it is unsupported by the evidence or otherwise unreasonable, and it must seek to supplement the decision if the reasons are deficient. [10] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [11] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:3 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [12] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.4 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [13] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. Nothing in the respective roles of RPD and RAD, however, suggests that the RAD should defer to the RPD on questions of law. [14] The nature of the question in issue: This appeal raises questions of law, and such questions have in general been reviewed on a correctness standard in the appellate court context. 5 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.6 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [15] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [16] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [17] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [18] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [19] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [20] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first-hand. In the RAD's view, the RPD does not have the same advantage on questions on law. [21] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [22] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and RPD. While some factors suggest a deferential standard of review, even on questions of law, the RAD finds that, when considered as a whole, the factors support the conclusion that the RAD owes no deference to the RPD on questions of law, as raised here. [23] It is an appropriate function for the RAD to ensure that the RPD is applying the correct law. This approach promotes just decisions and avoids inconsistent application of the law.14 A correctness standard on questions of law ensures universality in the application of the law.15 [24] The appropriate standard of review for the question of law raised in this appeal is one of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.16 The RPD's Findings [25] The RPD found that the Respondent is a citizen of China. It also considered where she would go if she cannot remain in Canada: The Claimant's dilemma in terms of which country she should live in could reasonably the panel finds, on the balance of probabilities, cause her to return to U.A.E., even though the Claimant indicated that she would not go back because she would not leave her children. The panel finds that but for refugee protection, the Claimant likely would be forced to go back to U.A.E. She refuses to bring her children to China because they have citizenship in Netherlands and they would have to forsake that citizenship, should they return there, as China only recognizes one citizenship. She indicates that her children would not be returning to China. The panel finds that the Claimant would have to resort to a country where she had the ability to support herself economically and that could very well be U.A.E. The panel finds, on a balance of probabilities, that if the Claimant were to situate herself in any country, including the U.A.E. she would need to continue to have contact with her husband because of the children.17 [26] Without discussing China any further, the RPD went on to find the Respondent to be both a Convention refugee and a person in need of protection. [27] The Minister submits that there was no assessment done by the RPD as to whether the Respondent would be at risk from her estranged spouse, a Dutch national, in her country of citizenship, China. [28] The Respondent disagrees, pointing out that the RPD clearly understood that she is a citizen of China, and that the discussion of the U.A.E. was by way of background. She submits that the RPD found she would be at risk in any country, which obviously includes China. [29] It is clear from the partial transcript provided to the RAD by the Respondent that the RPD hearing included questions about the risk faced by the Respondent in China. However, if the RPD did an analysis of the risk specifically faced by the Respondent in her country of reference, this is not apparent in the RPD's reasons. [30] For rather obvious reasons, most refugee claimants do not wish to return to their countries of citizenship. It is not unusual that the Respondent did not want to return to China. However, having apparently found that the Respondent was a citizen of China,18 the RPD was required to assess her claim against that country, regardless of the Respondent's views about returning there.19 Even if the RPD had somehow concluded that the Respondent had status in the U.A.E., it was obligated to consider her claim against both countries. A Convention refugee is a person who has a well-founded fear of persecution, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.20 A refugee claimant who is a national of two countries must make out her claim for refugee status against both countries.21 The RPD was therefore required to assess the Respondent's refugee claim against China, regardless of any status in the U.A.E. [31] The Respondent argues that the RPD did consider her claim against China, and it found her to be at risk in "any country." The RAD has carefully reviewed the RPD's reasons. It is clear from those reasons that the RPD's analysis assumed that the Respondent would go to the U.A.E. if her claim was rejected: "The panel finds that but for refugee protection, the Claimant likely would be forced to go back to U.A.E."22 This is puzzling, given that the Respondent said she had status in no other country besides China,23 and she twice told the RPD that she cannot go back to UAE because she cannot take her children there.24 [32] The RPD considered the Respondent's refugee claim against a country where she has no status and to which she cannot return. Although an error, this would not be fatal to the decision if the RPD also considered the claim against the proper country of reference, China. The Respondent argues that this analysis is included in the RPD's finding that she would be at risk in "any country." The RAD disagrees; the RPD's reasons simply do not include any specific assessment of the Respondent's claim against China, and this is an error. [33] Citing Newfoundland Nurses, the Respondent argues that, where the RPD's reasons are found to be inadequate, the RAD is empowered to supplement them by referring to evidence in the RPD record. In the RAD's view, there are circumstances where deficient RPD reasons may be supplemented by the RAD, based on evidence in the record and logical inferences, implicit to the result but not drawn. This is not such a matter, for two reasons. First, the questions here are ones of law, and the RAD has determined it therefore owes no deference to the RPD. Newfoundland Nurses discusses supplementing reasons in the context of a deferential approach. Second, even if it was applying a deferential standard, it would be inappropriate for the RAD to supplement here, for reasons described well by the Federal Court: Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.25 [34] Here, as in the matter described by the Court, the reasons are almost entirely silent on a critical issue, and there are insufficient dots for the RAD to connect. As the Respondent does not know the location of her husband, and as he has shown little interest in seeing her, how much of a risk does he pose to her? How might this alleged agent of persecution, who has no citizenship or status in China and who lived with her there for only two weeks, gain entry to the country and locate her? How might the authorities in China respond if they were told that a citizen fears harm at the hands of a foreign national? [35] The Minister also alleges that the RPD erred by failing to consider whether adequate state protection is available to the Respondent in China. The Respondent concedes that the reasons do not analyze state protection, but points out that the matter was canvassed in the hearing and that there is sufficient evidence in the record for the RPD to conclude that the presumption of state protection has been rebutted. Here again, there are no dots for the RAD to connect, and the RAD cannot guess what findings might have been made or speculate as to what the lower tribunal might have been thinking. The Respondent's claim is somewhat unique-she is a citizen of China who fears harm at the hands of a foreigner. Although the RPD member raised state protection as in issue in the refugee hearing,26 there were very few questions asked of the Respondent about state protection available to her in China,27 and apparently none which specifically focused on her alleged fear at the hands of a foreigner with no status in China. In these circumstances, it is impossible for the RAD to supplement reasons which do not exist, and it would be inappropriate for the RAD to substitute its own state protection finding. [36] The RAD recognizes that the RPD's decision was issued from the bench and that such reasons may lack the structure and polish of written reasons. However, this does not change the requirement that the Convention refugee definition be correctly applied. It was not, and the RPD's decision therefore cannot stand. CONCLUSION [37] The RAD sets aside the RPD's determination that the Respondent is a Convention refugee and a person in need of protection. [38] Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. While that panel is to determine the issues to be assessed, it is directed to consider China as a country of reference and to analyze the availability of adequate state protection for the Respondent there. [39] This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld March 31, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton, para. 43. 4 IRPA, Sections 96 and 97. 5 Ibid, para. 90. 6 Dunsmuir, paras. 58-61. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Dunsmuir, para. 50. 15 Khosa, para. 90. 16 Dunsmuir, para. 50. 17 RPD's Reasons, p. 4. 18 The RPD did not make a clear finding in respect to the Respondent's citizenship. However, it noted that she claims to be a citizen of China, and found her to be credible, and the RAD understands this to mean that the RPD accepted that the Respondent is a citizen of China. The panel made no finding in respect to the Respondent's status in the U.A.E., other than to note her testimony that she worked there for a long period of time. 19 The RPD apparently took into consideration the Respondent's testimony that she could not return to China with her children, who are citizens of the Netherlands. The RAD notes that the Federal Court has held on several occasions that the principle of family unity is not incorporated into the definition of a Convention refugee (see Chavez Carrillo v. Canada (Citizenship and Immigration) 2012 FC 1228, para. 15.) 20 IRPA, Section 96. 21 Alarcon v. Canada (Minister of Citizenship and Immigration), 2006 FC 207, para. 10. 22 RPD's Reasons, p. 4. 23 Respondent's Record, p. 2, Transcript. 24 Respondent's Record, pp. 23 and 24, Transcript. 25 Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, para. 11. 26 RPD's Reasons, p. 11. 27 RPD's Reasons, p. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09431