VB4-01965

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 : VB4-01965 / VB4-01966 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX Appeal considered at Appel instruit à Date of decision April 14, 2015 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Mojdeh Shahriari Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX and XXXX XXXX (the "appellants"), nationals of Iran, appeal the negative determination of the Refugee Protection Division (the "RPD") regarding their claims for refugee protection. As is set out in the RPD Notice of Decision dated June 12, 2014, the appellants' claims were heard by the RPD on May 23, 2014 with a written decision being rendered on June 6, 2014.1 The RPD determined that the appellants are neither Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")2 nor persons in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD. The RAD orders that the matter be referred to the RPD for a redetermination by a different RPD Member, without directions. The appeal is allowed. BACKGROUND [3] The appellants were represented at the RPD by the same counsel who represents them before the RAD. The Minister intervened by "documents only" at the RPD but has not intervened at the RAD. [4] A transcript of the RPD proceedings is included in the Appellants' Record (AR). As well, a compact disc (CD) of those proceedings forms part of the RPD Record (RPDR) and is found at the back of that Exhibit.3 I have read the entire transcript. [5] Technically, the appellants do not seek to present a new document to the RAD pursuant to subsection 110(4) of IRPA. They also do not seek a hearing before the RAD pursuant to subsection 110(6) of the Act. However, the appellants do seek to present to the RAD a document which they allege was not considered by the RPD although presented to the RPD prior to the RPD's determination which document the appellant maintains would justify the RAD substituting a positive determination for that of the RPD.4 Basis of claim [6] The appellants are a married couple from Iran with the wife being 32 years of age and the husband, 30. Both come from well-off and relatively modern families. Neither of the appellants professes to have much interest, knowledge, expertise or affiliation with political matters of any kind. The wife is the principal appellant and her husband's claim is derivative of that of his spouse. [7] The primary thrust of the claim is that the government of Iran allegedly believes that the principal appellant's association, through her work with foreign governments, reveals her to be working for foreigners against the interests of Iran. Between 2004 and 2006 the principal appellant worked at the XXXX XXXX in Tehran. She worked as a XXXX XXXX at the Canadian embassy in Tehran from XXXX until it closed in 2012, arising from a breakdown in relations between the two countries. [8] While she worked at the Canadian embassy she received a number of threatening phone calls from Iranian security agents. Shortly after the embassy closed, the principal appellant was detained and questioned at the Iranian airport after returning from a trip. Attempts were made by the authorities to extract whatever information she might have learned through her work and her dealings with foreigners. She was also questioned about her husband's ties with foreign countries arising from his extensive foreign travels connected with his business. [9] Such an interrogation, in May 2013, allegedly led to the principal claimant losing the couple's first child through miscarriage. That event, together with fears of further actions being taken against her by the Iranian government, led to the principal appellant developing an ongoing stress disorder. [10] After a period of rest recommended by her doctor, as well as a short XXXX 2013 trip to Turkey with her mother, the couple determined to leave Iran. In XXXX 2013, the couple left the country and went to Germany where they remained until November 2013 when they came to Canada using temporary residence visas they had obtained a year earlier. They made claims for refugee protection shortly thereafter. [11] The appellants allege that they have a well-founded fear of persecution in Iran because of their perceived political opinion and would face a danger of torture or a risk to their lives or of cruel and unusual treatment or punishment should they return to that country. Additionally, they allege that they face such fears, risks and danger throughout the country and that adequate state protection is not available to them there. RPD decision [12] The RPD accepted that the appellants had established their nationality as citizens of Iran. [13] The determinative issues for the RPD were credibility and the subjective basis of the appellants' claims. The RPD Member found that, if accepted as credible, the appellants had established a nexus with section 96 of the Act on the basis of perceived political opinion. The claims were assessed under both section 96 and subsection 97(1) of IRPA. [14] Stated generally, the RPD found that the appellants' assertion of their subjective fear of returning to Iran was not genuine "due to significant delays in leaving their country of persecution, re-availment and failure to claim elsewhere". The RPD also found "several aspects of their allegations implausible."5 [15] The RPD found: * A lack of subjective fear was demonstrated by the fact that the principal appellant never discussed her problems with anyone from the Canadian embassy after the Canadian embassy was closed, even with the individual who had assisted the appellants in obtaining Canadian visas. The Member did not accept the appellants' explanation that they did not believe that such persons could help them, particularly after the Canadian embassy closed. Additionally, the RPD drew an additional negative inference from the lack of evidence corroborating their reasons for not making a claim in Germany on the basis that they believed Canada would be a more appropriate refugee destination because their problems primarily arose from the principal appellant's employment at its embassy. This was particularly so with regard to the lack of evidence from a former embassy worker who had "invited the couple to come to Canada." 6 * The RPD found it "implausible" that if the Iranian authorities believed the principal claimant to be a spy as she alleged, they would have permitted her to travel unimpeded to Turkey on her own passport, particularly in light of allegations that the authorities wanted to impose conditions on her of, for example, not changing her residential address or telephone number.7 * The RPD noted that, after various interrogations and, in particular, the miscarriage of her pregnancy in May 2013, the couple did not leave Iran until XXXX 2013. The Member did not accept the explanation for this delay that the appellants were hopeful that the "situation would improve" in Iran and that they were taking time to search for information "on how to immigrate to Québec". The RPD found that the appellants provided no basis upon which they might have thought the situation in their country would improve and that there was no need to conduct a search for places to go given that the couple was already in possession of visas for a number of countries.8 * The RPD did not accept the principal appellant's explanation for returning to Iran after she took her XXXX 2013 trip to Turkey with her mother, particularly since that trip took place after her interrogations and after the principal appellant's miscarriage. It appeared to the RPD that the principal appellant's leaving the country whereby she might have contact with foreigners is the very activity about which the authorities were allegedly concerned. The principal appellant had said that she took the trip because her husband thought it would be good for her and that she thought she would be safe because she would be traveling with her mother. The RPD found her conduct in returning to Iran in XXXX 2013 was implausible given the appellant's allegation that, by the time the principal appellant had her miscarriage in May 2013, " 'she realized they had no safety at all' and that 'anything could happen' to them". As well, it was incomprehensible to the Member that if it was a telephone call from Iranian authorities in XXXX 2013 that was the final determining factor to leave Iran, prior to taking the Turkish vacation, the principal appellant would return to Iran in precisely the same way as she had earlier which had led to government interrogations.9 * The RPD did not accept the appellants' explanation as to why they did not make a refugee claim in Germany, a place where the principal appellant had a sister. The appellants stated that they did not claim there given their admittedly mistaken belief that, since their problems arose from the principal appellant's work at the Canadian embassy, Canada would be the country most likely to grant refugee. They explained that it was naivety on their part not to seek legal advice in Germany or even discuss the matter with the principal appellant's sister there. The Member did not accept that the appellants, being educated, affluent and very well-travelled would have lacked the wherewithal to make inquiries about staying in Germany. As a result, the Member drew a negative inference from the circumstances with respect to both credibility and subjective fear.10 * By way of general comment, the RPD Member found the events described by the appellants as being "implausible". The Member found that there was "no evidence" that the Iranian authorities would have targeted the principal claimant as she described, i.e. solely because she worked at a foreign embassy. Such employment is common in Iran and, although there was some evidence of Iranian nationals who worked at foreign embassies in Iran being arrested, "such arrests appear to be for activities unrelated to their work in the embassies." The RPD did not find it plausible that the Iranian government would consider [the principal claimant] to be a spy solely by virtue of her employment as a locally-engaged staff in the Canadian consulate."11 * The RPD gave no weight to the psychological report provided by the principal appellant regarding her post traumatic stress disorder (PTSD) with respect to credibility inasmuch as it was reliant on what the psychologist was told by the appellant and that the Member preferred his own analysis of the merits of the claim "in preference to that of the psychologist."12 [16] The RPD did accept certain aspects of the appellants' allegations as follows: [30] The panel accepts that [the principal appellant] worked in the position she described with the Canadian government. The panel further accepts that [she] had a miscarriage. In addition, the panel finds that the Iranian authorities may very well have questioned [her] on occasion regarding her understanding of what transpired at the Canadian embassy. However, these findings do not lead the panel to a conclusion that the claimants have a well-founded fear of persecution in Iran due to a perception on the part of the Iranian government that [the principal appellant] is a spy working on behalf of foreign governments.13 GROUNDS OF APPEAL [17] In their words, the appellants raise the following grounds for appeal:14 a) violation of procedural fairness rules and natural justice; b) error in law by not considering the objective basis of the fear of persecution; c) reviewable error in the rejection of the expert report of Doctor XXXX; d) reviewable errors in the RPD's credibility and lack of subjective fear findings; and e) reviewable errors in implausibility findings. [18] As will be made obvious in the Analysis portion of this decision, the determinative ground regarding this appeal is the first listed in the above. Briefly stated, the appellants allege that the RPD failed to mention, or even acknowledge receipt of, a document submitted post-hearing (but before the RPD rendered its determination) consisting of an Iranian judicial summons issued to the principal appellant requiring her to appear before the Islamic Revolutionary Tribunal in Tehran on XXXX XXXX XXXX XXXX "with relation to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX."15 The appellant alleges that this alleged failure on the part of the RPD constitutes a breach of natural justice and a violation of procedural fairness. In the result, I agree. REMEDY SOUGHT [19] The appellants seek an order16 that the RAD set aside the determination of the RPD and a) substitute it with a determination that the appellants are Convention refugees or persons in need of protection or, alternatively, b) refer the matter to the RPD for redetermination by a different RPD Member. THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [20] In their AR the appellants submitted that the negative credibility and subjective fear findings of the RPD were "unreasonable and made without regard to the totality of the evidence."17 As well, the appellants submitted that questions of procedural fairness, natural justice and errors in law demand a correctness standard of review to be applied by the RAD to the RPD.18 [21] Subsequent to the July 2014 Federal Court decisions in Alvarez19 and Eng20 mentioned in the following, on August 8, 2014 the RAD Registry invited any submissions the appellants might wish to make on the standard of review in light of those cases. The appellants did so on August 11, 2014.21 The appellants submitted that the decisions in Alvarez and Eng regarding the application standard of "palpable and overriding error" by the RAD to the findings of the RPD were largely supportive of the position previously taken by the appellants in their AR. The appellants further submitted that the two Federal Court decisions supported the position that the scope of the RAD's jurisdiction to determine whether or not persons were or were not Convention refugees extended sufficiently far so that the RAD in this case could make a positive determination with respect to the claims based solely on the RPD Record, including substituting its findings on credibility for that of the RPD having regard to the transcript provided in the appeal. [22] I have concluded that the appellants are correct in asserting that, with respect to the allegation of a breach of natural justice or a lack of procedural fairness, the appropriate standard of review I should apply is that of correctness. However, I disagree with the suggestion that I am in a position in the circumstances of this case to substitute the RPD's findings on credibility with my own on the basis of the record alone. This will be discussed more fully in the Remedy portion of this decision. By way of preamble to that discussion concerning the proper approach the RAD should take regarding RPD credibility findings it is necessary to discuss in some detail the evolution of the views of the Federal Court on that issue. [23] The RAD commenced its operations in December 2012, following amendments being made to IRPA. The RAD's initial decisions found that reasonableness was the appropriate standard of review for matters concerning fact and mixed fact and law with correctness being the standard for issues of law alone. The correctness standard with respect to alleged errors of law continues to be acknowledged by the Federal Court. [24] The first Federal Court judicial review of a RAD decision was not until May 2014. This initial review by Justice Shore in Iyamuremye22 supported the RAD's then interpretation that "reasonableness" should be the standard of review with respect to RPD findings of fact and mixed fact and law. Nonetheless, the Federal Court found that the RAD's failure to assess all of the evidence when determining whether the RPD findings were reasonable required that the matter be returned to the RAD for reconsideration. [25] However, commencing in late July 2014, the Federal Court began to provide numerous other decisions which rejected the standard of "reasonableness" with respect to the RAD's assessment of RPD findings of fact or mixed fact and law. The subsequent problem created for the RAD with respect to the matter of the appropriate standard of review arose from the fact that, aside from virtually unanimously rejecting the "reasonableness" standard, there developed a lack of comity among the Justices of the Federal Court as to what standard, if any, should replace it, as well as to what type of RPD findings any such standard should apply. [26] In the first two of these decisions decided in July 2014, Alvarez and Eng, Justice Shore, who initially adopted the reasonableness standard in May 2014, altered his position and found that because the RPD process is an appeal and not in the nature of judicial review, the RPD should conduct its own assessment of the facts in order to determine whether the RPD made an error regarding findings of fact to the point of making "a palpable and overriding error."23 The Federal Court found that the RPD's ability to hear viva voce evidence required the RAD to show deference to the RPD's findings of fact and mixed fact and law. This standard of palpable and overriding error was subsequently adopted by Justice Roy in Spasoja24 in September 2014. [27] In August 2014, subsequent to Alvarez and Eng but prior to Spasoja, Justice Phelan in Huruglica25 also rejected the reasonableness standard. However, he found that the RAD should not become involved in applying a standard of review but, rather, when coming to its determination, should consider its purpose as an appellate body, the provisions of the legislation, and its expertise compared to that of the RPD. The RAD is to conduct a "hybrid appeal" whereby it is not restricted to intervening only in the event of a palpable and overriding error. Rather, the RAD is to "recognize and respect" the findings of the RPD, but only where the RPD had an advantage in making findings such as when it hears direct evidence from an appellant or witness. Otherwise, the RAD is to make its own independent assessment as to whether or not an appellant is a refugee or a person in need of protection. Importantly, having rejected the standards of reasonableness and palpable and overriding error regarding the deference to be shown by the RAD to the RPD, Justice Phelan did not further define what the phrase "recognize and respect" might mean in the context of its actual application to specific cases. Subsequent cases which adopted the general thrust of Huruglica have also not provided a specific definition of that type of deference.26 [28] Many other subsequent Federal Court decisions discuss various nuances as to whether or not the type of deference subsumed in the phrase "recognize and respect" only applied with respect to credibility issues, extended to general findings of fact or, perhaps in some situations, matters of mixed fact and law. [29] Yet other Federal Court decisions which found that the RAD was in error in applying the standard of reasonableness to findings of fact by the RPD nonetheless confirmed the ultimate determination of the RAD on the basis that the RAD had, in any event, reviewed all of the evidence and what the RAD had confirmed in these cases were essentially credibility findings of the RPD. I will comment further on these cases later in these reasons. [30] The history and development of the above varying points of view were discussed in detail by Justice Martineau in his October 8, 2014 decision in Alyafi.27 Justice Martineau concluded that as a result of the case law which had developed at the Federal Court and, due to a lack of comity among the various Justices on certain fundamental principles, a conundrum has been created whereby inconsistent and irreconcilable authorities had developed which were, nonetheless, equally binding on the RAD as a result of the application of the principles of stare decisis. [31] Justice Martineau noted that certain certified questions yet to be determined by the Federal Court of Appeal could ultimately resolve the conundrum. However, as stated by the Justice, the matter could well not end at the Federal Court of Appeal level and could require an ultimate determination by the Supreme Court of Canada. In Justice Martineau's estimation the clarity which might be expected to emerge from this process could take considerable time to emerge. In the interim, in the Justice's view the RAD faces the unresolvable dilemma of being legally bound by decisions which are contradictory and mutually exclusive in important respects. [32] Justice Martineau found that as an interim solution until the questions are resolved by authorities superior to the Federal Court, Members of the RAD should be free to select either of the two basic streams of analysis developed to that point, without facing the prospect of having their RAD determinations set aside solely for the reason of having selected one of the two analysis to the exclusion of the other. One of the lines regarding deference and alleged RPD errors relating to findings of fact is represented by Justice Roy in Spasoja who would apply the standard of palpable and overriding error while the other is led by Justice Phelan in Huruglica using the phrase "recognize and respect" in connection with RPD credibility findings where the RPD is in a better position than the RAD to make those findings. [33] It is important to recall that, up to and including the point in time that Justice Martineau decided Alyafi, all of the Federal Court judges had taken the approach that the Federal Court's review of the RAD's interpretation of IRPA should be based on the standard of correctness. That being so, in my assessment a junior decision-maker such as a Member of the RAD, being equally bound by both lines of reasoning, but invited by Justice Martineau to select one or the other until the matter was resolved at a higher level, left the RAD to select all of the reasoning of one or the other of the lines but did not allow the RAD to provide an interpretation of its home statute that was different from either or, even, a blend of the two. As I understand it, that is also the nature of the principle of stare decisis. [34] In what I consider to be a further important development in the case law, in November 2014 Madam Justice Gagné in Akuffo28 broke with her colleagues and specifically found that the Federal Court's review of the RAD's interpretation of its home statute should not apply the standard of correctness but, rather, reasonableness. She did so having regard to four recent Supreme Court of Canada decisions which she determined were binding. She came to a similar general conclusion in Kurtzmalaj29 and, specifically when dealing with the introduction of new evidence before the RPD pursuant to subsection 110(4) of the Act, in Singh.30 This was the conclusion as well which Justice Martineau adopted later in November in Djossou.31 Justice Martineau also stated the following with regard to a "pragmatic approach" to the issues he suggests is appropriate in light of the law surrounding the function of the RAD: [37] Hence, this is why it seemed to me to be more prudent, in this case, as long as the issue has not been finally resolved on appeal, to adopt a pragmatic approach. Also, for the very reasons that were put forth in Alyafi, above, I do not think there is any need, at this particular moment, for me to make any sort of final ruling on the interpretation of sections 110 and 111 of the IRPA to determine this application for judicial review. For the time being, there appear to be a number of possible approaches, but what is clear, however, is that the option chosen by the RAD (a judicial review-based approach) is not an acceptable outcome in law. Even applying the lesser standard of reasonableness, I still arrive at the same end result as my colleagues who applied the more stringent correctness standard. Intervention is warranted in his case. In this way, the choice of appropriate standard of review will not be determinative of the matter (which might not have been the case had I adopted a correctness standard or had I dismissed the applicant's application by applying a standard of reasonableness). [RAD emphasis] [35] More recently, Justice Boswell in Siliya,32 after concluding that the question of the standard of review as between the RAD and the RPD was not dispositive in the case before him, provided the most definitive view to that time that the Federal Court is to apply the standard of reasonableness to RAD factual findings when stating: [20] Otherwise, the reasonableness standard applies to the RAD's factual findings, and its assessment of the evidence before it is entitled to deference (see: Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190 Dunsmuir]; Yin at para 34; Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at para 27; Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13-14). Moreover, the RAD's decision should not be disturbed so long as it is justifiable, intelligible, transparent and defensible in respect of the facts and the law (Dunsmuir at para 47). Those criteria are met if "the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR 708). [36] Using the same criteria applied by Justice Martineau in Alyafi33 when he determined that, while inconsistent with each other, the Federal Court decisions in Huruglica and Spasoja were both binding on the RAD, I find so too would be Justice Gagné's decision in Akuffo, Justice Martineau's in Djossou and Justice Boswell's in Siliya. [37] I appreciate that Justices Gagné, Martineau and Boswell were dealing with the Federal Court's standard of review regarding the RAD's determinations and not the RAD's analysis of the decisions of the RPD. However, having concluded that when the Federal Court utilizes the correctness standard when reviewing RAD decisions, there is strictness to that analysis that requires the RAD to apply the Federal Court's direction in a very specific way. Compliance with that level of "correctness" is exceedingly difficult, if not impossible, when there are multiple views of what is correct emanating from the same level of judicial authority, all of which technically bind the RAD. As Justice Martineau has noted, a significant time will likely pass before further direction will be available from the Federal Court of Appeal, if not higher authority. However, when the Federal Court adopts a standard of review of reasonableness in reviewing the RAD's interpretation of how it is to perform its legislatively mandated jurisdiction, particularly in light of the divergent views of the Federal Court, additional flexibility may be allowed the RAD in dealing with its ongoing caseload in the interim on a case-by-case basis. However, this flexibility will still be constrained to the extent that some common principles have emerged from the body of jurisprudence provided so far by the Federal Court. I will discuss those later in these reasons. [38] One of the more significant conundrums noted by Justice Martineau and other Justices arising from the current case law concerning the RAD is what is meant by "deference". "Palpable and overriding error" is, like "reasonableness", a legal concept for which much legal guidance has been provided from the courts at all levels for many years. However, the notion of the RAD "recognizing and respecting" the conclusions of the RPD in particular circumstances (such as findings based on credibility or where the RPD otherwise enjoys a particular advantage over the RAD in coming to its conclusions) has not been given any further definitional substance. [39] Broadly stated, "deference" involves the concept by which one sublimate's one's own view to that of another. That is to say, even though one's conclusion differs from that of another, there is good reason to defer to the other's conclusion. [40] When assessing the "good reason" to defer, one measure is the existence of "palpable and overriding error". In the Alvarez case noted earlier, Justice Shore stated: [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different.34 [RAD emphasis] [41] In 2012 Justice Stratas of the Federal Court of Appeal in South Yukon Forest Corporation commented: [46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Pearl v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.35 [RAD emphasis] [42] When reviewing a decision on the basis of "reasonableness" the analysis will be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.36 [43] I acknowledge both Justice Shore's observation that, while "reasonability" and "palpable and overriding error" have some similarities, the standards are different and Justice Stratas' statement that the latter is a "highly deferential standard of review." It may well be that, under the definitions provided, an error that is palpable and overriding will always also reveal an unreasonable conclusion. However, the reverse may not always be the case. There may well be a steeper hill for an appellant to demonstrate a palpable and overriding error than it is to show a lack of reasonableness. [44] Given the general thrust of virtually all of the Federal Court decisions to date that a RAD appeal is to be comprehensive in its nature, I conclude that the palpable and overriding test may be too stringent for the task at hand. I elect not to use it in the circumstances where the Federal Court is not of one mind on the issue. [45] As noted by Justice Barnes in the Federal Court decision in Kanga, in such situations it is not necessary for me to explain further why I have selected one of the two competing lines of authority as opposed to the other: [11] Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.37 [46] In the Akuffo decision discussed earlier, Madame Justice Gagné found that in the particular case before her she was, . . . far from being convinced that there is a real and pragmatic difference between an 'unreasonable' error and an 'overriding and palpable' one, I am of the view that said distinction would have no impact in the case at bar.38 She determined that the RAD had reviewed and reassessed the evidence and . . . gave proper deference to the RPD's credibility findings which were sufficient for the RAD to reasonably confirm the RPD's overall conclusion that the [appellant] was neither a Convention refugee nor a person in need of protection.39 She also concluded: [47] The RAD did consider the applicant's explanations for his behaviour during his birthday party and later on the same night. The RAD concluded that even if these explanations seemed reasonable, it was nevertheless of the view that the RPD's analysis was reasonable when looking at the claim as a whole. This is a strong indication that the RAD had reviewed the evidence given by the applicant and reassessed the claim in light of its own finding that some explanations given by the applicant were reasonable.40 And, [50] I find it reasonable that the RAD deferred to the RPD's credibility findings. I also find that its overall reassessment of the evidence is reasonable. Therefore, the application for judicial review will be dismissed.41 [47] In Akuffo, the RAD had clearly applied the traditional definition of "reasonableness" in assessing the RPD's determination but, because the RAD had restricted itself to the analysis of the credibility of the appellant and it was evident that the RAD had conducted its own analysis of the evidence, the RPD decision was confirmed. This was so even though the RAD believed, contrary to the RPD, that some of the appellant's explanations given by the appellant were reasonable. [48] There are a number of similar examples to be found in the case law where the RAD's confirmation of the RPD's negative credibility findings have been upheld by the Federal Court, even though the RAD had utilized the reasonableness standard in assessing those findings. However, in so doing the Federal Court has certainly not endorsed the nomenclature of "reasonableness" but has accepted the result in any event, at least where the RAD's analysis is restricted to the credibility findings of the RPD. A common thread appears to be the fact that the Federal Court was satisfied with the process the RAD had followed in comprehensively reviewing the available relevant evidence in assessing the RPD findings rather than the RAD's decision to use the word "reasonable" in its conclusions. [49] Examples would include the decisions of Justice Shore in Sajad and Allalou.42 In Sajad, Justice Shore found that the RAD had "validly shown deference" to the RPD's credibility findings and that the result would have been the same "regardless of the standard of review it applied." In Allalou, he found that "considering that the RPD's decision is solely founded on findings of credibility, the RAD applied the appropriate level of deference towards the RPD's determinations of the applicant's credibility." The RAD had used the reasonability standard. Likewise, this was also the case for Justice Locke in Njeukam43 where, although the reasonability standard was utilized to assess the RPD's credibility findings, the issue of standard of review was not determinative because the RAD had conducted a thorough review of the evidence and, having done so, ". . . the RAD was right to defer to the RPD's finding." [50] Thus it is then that a standard of review generally applied by the RAD to all findings of fact and mixed fact and law based on reasonableness, per se, will not be acceptable to the Federal Court. However, a comprehensive analysis of the RPD credibility and other factual findings (where the RPD is in a better position than the RAD to make such conclusions) based on criteria similar to that of the traditional definition of "reasonableness" may find approval on judicial review. Based upon the culmination of the case law to date, I cannot craft a more precise conclusion than that. [51] Some support regarding the above conclusion about the standard of review as between the Federal Court and the RAD can be drawn from the December 2014 decision of Justice Noël in Yin.44 The Justice notes in detail the mixed state of the law regarding the standard of review the Federal Court should use in assessing RAD determinations (at paragraph 32) and states further: [33] As such, the standard of review this Court should apply when reviewing the standard of intervention chosen by the RAD in its review of a RPD decision is undecided. As noted, this question is not determinative with regards to the case at bar. I therefore adhere to Justice Martineau's approach in Djossou, supra at para 37, that until this question is resolved by the Federal Court of Appeal, a pragmatic approach should be used for the determination of the present judicial review. [34] In the present appeal, the RAD is being asked to deal only with the credibility findings made by the RPD, as the appeal shows. As it is well recognized, in such cases, the standard of review applicable is that of reasonableness.45 [52] Justice Noël provides examples of four of the cases I have noted above where the Federal Court dismissed an application for judicial review in instances where the RAD used a reasonableness standard regarding RPD credibility findings and then stated: . . . however in Djossou, supra, Justice Martineau states that he will not judicially impose on the RAD any degree of deference whatsoever to be applied to RPD decisions (at para 91). Being prudent, Justice Martineau also does not speculate nor gives a definitive opinion as to the scope of the examination of a RPD decision on appeal to the RAD (Alyafi v Canada (Minister of Citizenship and Immigration), 2014 FC 952 at paras 51-52).46 [53] Regarding the case before him Justice Noël found: [37] In the case at bar, in its decision, the RAD reiterates the RPD credibility conclusions and concludes that the RPD findings were reasonable. A reading of the RAD decision shows that it read the transcript of the RPD hearing, the documentation filed and that it reassessed the credibility findings of the RPD. It even went further than the RPD in its analysis of the political context in Cambodia by comparing the Applicant's allegations to the US Country Reports on Human Rights Practices for Cambodia for 2012. The RAD notes that the Applicant's allegations contradict this documentary evidence. It is also based on this last evaluation that the RAD confirmed the RPD conclusions. The RAD assessment therefore goes further than simply confirming the RPD decision. The RAD conducted its own examination of the record before the RPD in making its decision. This situation is therefore very similar to the four cases identified above, where this Court confirmed the RAD decision and rejected the application for judicial review. Whatever the deference to be given by the RAD to RPD credibility findings, the RAD in this case looked at the evidence, dealt with the credibility issues raised by the appeal and concluded that the RPD credibility findings were sound, as its own assessment reveals. I, therefore, conclude that the RAD, by doing its review and own assessment of the evidence, did assume fully its role as an appellate tribunal and did show the required deference to the credibility findings made by the RPD.47 [RAD emphasis] [54] Given its recent publication date and the fact that the decision is rendered in the context of not only the Federal Court internal debate regarding standards of review (both as between the Federal Court and the RAD and the RAD vis-à-vis the RPD, but also with respect to the meaning of "deference" regarding the latter) I take Justice Noël's synopsis as a general overall guide to the appropriate practical or pragmatic approach I should take in conducting a RAD appeal until the various issues in play are resolved by the Federal Court of Appeal. [55] Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal.48 As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under subsection 110(6) of IRPA. I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters about which the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [56] As noted earlier, the determinative issue on this appeal is that of a breach of natural justice or lack of procedural fairness. The standard of review to be applied is that of correctness. [57] The appellants' primary complaint is that an allegedly critical document forwarded to the RPD just prior to the RPD rendering its written negative determination was, based on a review of words of the RPD decision itself, apparently not considered. The chronology of events is important. [58] The RPD hearing was held on May 23, 2014 with the written determination of the RPD being signed on June 6, 2014. The appellants provided a number of post-hearing documents to the RPD. [59] The first was counsel's cover letter dated May 24, 2014 accompanied by a one-page news article (together with its translation) allegedly demonstrating that local staff of foreign embassies are subject to persecution in Iran.49 The letter bears a fax transmission record indicating that it was sent at 9:48 on May 24, 2014. This document package bears a RPD Registry receipt stamp dated May 26, 2014 and an exhibit stamp dated May 29, 2014 upon which it was designated by the RPD Member as Exhibit 11.50 In 2014, May 24 was a Saturday and May 26, a Monday. [60] The second package consists of counsel's cover letter dated May 26, 2014, accompanied by three country condition reports, also dealing with the question of whether or not local employees of foreign embassies are persecuted in Iran.51 The fax transmission record states it was sent at 9:29 May 26 2014. The RPD Registry receipt stamp is dated May 26, 2014 and there is an exhibit stamp dated May 29, 2014 designating the package as Exhibit 12. [61] The Member does acknowledge having received these two disclosures as follows:52 [6] After the oral hearing of this claim, counsel for the claimants filed two applications for the admission of post-hearing evidence on May 24 and 26, 2014. The panel has reviewed the post-hearing documents, and finds that the documents do constitute evidence pertaining to a matter that was raised during the course of the oral hearing. Accordingly, the documents in the application dated May 24, 2014 are entered as Exhibit 11, and the documents received May 26, 2014 are entered as Exhibit 12. [62] The third package includes counsel's cover letter dated June 5, 2014, together with a Summons (and its translation) from the Islamic Revolutionary Tribunal in Tehran dated XXXX XXXX XXXX XXXX requiring that the principal claimant appear at the Tribunal's offices on XXXX XXXX XXXX.53 The translation of the Summons states: "Must appear as accused with relation to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX". It is this letter which forms the basis of the appellants' submissions regarding a breach of natural justice or a lack of procedural fairness. [63] Counsel's cover letter indicates that it was faxed at 9:07 on June 5, 2014. June 5 was a Thursday. The letter bears a RPD Registry receipt stamp, also dated June 5. However, no exhibit stamp has been placed on the package and no exhibit number was ever assigned to it. This Summons documentation is not referenced in any way in the RPD Member's written decision which he had signed on Friday, June 6, 2014. [64] Nothing on the record indicates at what time of day the Member might have signed his decision on June 6. While it somewhat speculative on my part, based on my experience over the last approximately eight years as either a Member of the RPD or, now, a Member of the RAD, I suspect that, while the documents might have arrived at the IRB's common fax number on the morning of June 5, for some reason it did not find its way to the RPD file until at some point after the Member had signed the decision the next day. Many such documents are received by the Immigration Refugee Board (IRB) offices each day. Typically, once a Member has signed a decision, the file itself is taken away for its final processing, usually not to be returned to the Member. [65] In any event, there are certain attributes of counsel's June 5, 2014 letter that should be noted prior to considering the February 5, 2015 Federal Court decision of Justice Shore in Mannan54 which I find of considerable assistance in determining this appeal. [66] The letter, on counsel's letterhead, is addressed specifically to the RPD Member who had conducted the RPD hearing and who had reserved his decision. It is not simply directed generically to the RPD. It is addressed to the correct address of the IRB and bears its correct fax number. The letter was marked and underlined in bold print as being "URGENT". The body of the letter describes how the principal appellant came into possession of a copy of the Summons and stated that, if the Member so wished, steps would be attempted to have the original sent from Iran. [67] Counsel indicated that her letter should be taken as an application for the Summons to be admitted into evidence at the RPD noting that, "The document is material evidence proving imminent danger to the [principal claimant] and her husband should they go back to Iran." The letter then describes the nature of the Summons and alleges that, "She will be apprehended upon arrival to Iran [sic] due to nonappearance and for further persecution based on 'acting XXXX XXXX XXXX XXXX XXXX XXXX XXXX.'" [68] Taking all of the above into account, I find on a balance of probabilities that the Summons was disclosed to the RPD before the time the RPD Member rejected the appellants' claims by signing his decision on June 6, 2014. That being the case, my consideration of the document is not dependent upon my determination to accept it pursuant to subsection 110(4) of the Act which provides: 110(4) On appeal, 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. [69] In my assessment, subsection 110(4) concerns itself with documentation that had not been made available to the RPD before the RPD made its determination. In this case the Summons was made available but, apparently not considered, when the claims were rejected. [70] The Mannan case concerned a Bangladesh family who alleged they required refugee protection on the basis of the father's political opinion and the imputed political opinion of the family as well as their membership in a particular social group. The agents of persecution were alleged to be one of the political parties in that country which opposes the political party with which the father had some affiliation. Physical assaults, threats and the kidnapping and sexual assault of one of the family's daughters were all elements of the allegations. The refugee claim of the oldest daughter in the family was heard separately before another RPD Member. [71] The RPD decision in Mannan was dated April 1, 2014, following a hearing on March 17, 2014. The RPD in that case found that there was a lack of credibility, concluding that the father did not have the profile of a person who would be targeted or whose family would be abused in acts of revenge against him. The daughter's separate RPD hearing was held on March 11, 2014. Her claim was heard separately due to the sensitivity of the evidence relating to the sexual assault against her. [72] On March 21, 2014, the claimants in the Mannan case sought to introduce the positive decision of the RPD in the daughter's case dated March 20, 2014 which had confirmed the father's political involvement. The claimants in Mannan alleged that the RPD Member in their case ignored this post-hearing evidence. [73] The respondent in Mannan submitted that, since the claimants had failed to file an application to present the decision in the other claim in conformity with the RPD Rules,55 the RPD did not fail in its duty to consider that evidence. The respondent also raised other reasons why the judicial review should be rejected but they are not germane to this discussion. [74] Justice Shore found that the issue of the consideration by the RPD of post-hearing evidence is a question of procedural fairness, which must be reviewed on the correctness standard.56 He also found that the RPD has a duty to receive evidence submitted by the parties at any time until a decision is rendered, citing a number of cases in support of that proposition.57 [75] On the question of the applicant not having complied with the RPD rules in attempting to submit the evidence, Justice Shore, following other authorities, found that strict compliance with the rules was not necessary, so long as the evidence was provided and was accompanied by an explanation as to why it should be considered. One of the cases cited by Justice Shore was Shuaib58 about which Justice Shore commented: [47] More precisely, the Court in Shuaib, above, considered the following factors in its determination: i. The letter and post-hearing evidence was stamped, received and dated by the Board; ii. Counsel for the Applicant had clearly stated that post-hearing documents were attached. The Court deemed this to be a clear, although not explicit request calling upon the RPD to consider the admittance of post-hearing documents; iii. An affidavit from the Applicant's brother was included in the request, explaining the circumstances under which the central document submitted in post-hearing evidence was obtained. This affidavit explained the reasons why the document was not available at an earlier date and that it was provided as soon as it was made available. [76] As noted above, in the case before me counsel's cover letter clearly highlighted the nature of the Summons enclosure and its alleged importance as material evidence. Care was taken to properly direct the package, highlighting its urgency. As in Shuaib, the post-hearing evidence was stamped as received and dated by the IRB. In my opinion, the overriding problem is that the evidence apparently never got to the Member before he finalized his decision. In those circumstances, I find there is a breach of procedural fairness. [77] Having come to this conclusion, following Justice Shore59 I must consider whether or not consideration by the RPD of the Summons could have had a material effect on its decision or whether the RPD's ultimate result was inevitable in any case. [78] As noted in his reasons, the RPD Member in this case had significant doubts about the credibility of the appellants' story, not the least of which was whether or not a person with the profile of the principal appellant would attract the Iranian authorities' attention. The Summons could well be found to be clear evidence of such targeting. Additionally, with respect to credibility the RPD had found a lack of subjective fear. Even in that regard, the Summons, if found credible, could have also impacted that conclusion. [79] In my assessment, the breach of procedural fairness in this case is not simply technical but, rather, significant with regard to important elements of the claim. I cannot conclude that, if the RPD had considered the Summons, it would have been inevitable that the Member would have come to the same conclusions as are set out in his decision. In coming to this conclusion I am not prejudging whether or not, in the end, the result would be the same. The point is that evidence such as the Summons must be considered by the decision-maker. Borrowing the words of Justice Shore at paragraph 53 of Mannan, "a breach of procedural fairness can only be overlooked if there is no doubt that it has no material effect on the decision. That is not the case in this particular situation."60 [80] Given the above, the appeal must succeed and the determination of the RPD must be set aside. That being so, it is not necessary to consider the other grounds of appeal raised by the appellants. REMEDY [81] Having determined that the RPD decision is to be set aside, what is the appropriate remedy in this case? Section 111 of the Act sets out the RAD's powers in this regard: 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. [82] I have considered whether or not I could order a hearing of the RAD concerning the Summons which, if found credible, would put me in a position of being able to substitute the RPD's determination with one of my own as referenced in subsection 111(1)(b). Based on my interpretation of the Act and the Refugee Appeal Division Rules (the "RAD Rules")61 I find I cannot do so in this case. [83] Justice Roy noted in paragraphs 41-42 of Spasoja62 that, having reviewed the statutory scheme under which the RAD operates, there are no indicators to be found in the legislation passed by Parliament which provide for an appeal de novo before the RAD. Subsection 110(6) and the RAD Rules do provide for a limited RAD hearing but it is specifically directed towards credibility assessments arising from particular documents and is, thus, restricted in its scope. In cases such as the one before me where the breach of natural justice leads to the credibility findings of the RPD be set aside, the 110(6) process does not allow for the RAD to re-hear all of the evidence that might have been heard before the RPD so as to enable the RAD to make all findings necessary to conclude the claim. In this case, having set aside the RPD determination for the reasons noted above, I cannot give deference to the RPD's credibility findings (even though those findings were made from a better position than myself because the RPD heard the actual evidence from the parties) when, as here, those findings might have been different had the RPD considered the Iranian Summons. [84] In the result, the available option is found in paragraph 111(1)(c). Accordingly, the matter will be referred to the RPD for redetermination by a different RPD Member. CONCLUSION [85] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX and XXXX XXXX are neither Convention refugees nor persons in need of protection is set aside. The RAD orders that the matter of the appellant's claims be referred to the RPD for redetermination by a different RPD Member. No other directions are given. The appeal is allowed. (signed) "Philip MacAulay" April 14, 2014 Date 1 Refugee Appeal Division (RAD) Exhibit 4, Refugee Protection Division Record (RPDR), pp. 3-12. 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 RAD Exhibit 4, RPDR, p. 431. 4 RAD Exhibit 2, Appellants' Record (AR), pp. 225-226. 5 RAD Exhibit 4, RPDR, pp. 7-8, para. 19. 6 RAD Exhibit 4, RPDR, p. 8, paras. 20-21. 7 RAD Exhibit 4, RPDR, p. 9, para. 22 8 RAD Exhibit 4, RPDR, p. 9, para. 23. 9 RAD Exhibit 4, RPDR, pp. 9-10, paras. 24-25. 10 RAD Exhibit 4, RPDR, p. 10, para. 27. 11 RAD Exhibit 4, RPDR, p. 11, para. 28. 12 RAD Exhibit 4, RPDR, p. 11, para. 29. 13 RAD Exhibit 4, RPDR, p. 11, para. 30. 14 RAD Exhibit 2, AR, p. 230. 15 RAD Exhibit 2, AR, pp. 222-223. 16 RAD Exhibit 2, AR, pp. 246-247. 17 RAD Exhibit 2, AR, p. 226. 18 RAD Exhibit 2, AR, p. 231, para. 26. 19 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 20 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 21 RAD Exhibit 5. The appellants made additional submissions of the case law as it developed in RAD Exhibits 6 and 7. I have also considered these cases in my discussion of the evolution of the law set out in this decision. 22 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 23 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; and Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 24 Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913. 25 Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799. 26 For example see Njeukam v Canada (Minister of Citizenship and Immigration), 2014 FC 859; Yetna v Canada (Minister of Citizenship and Immigration), 2014 FC 858; and Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063. 27 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 28 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, paras. 15-27. 29 Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072. 30 Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022. 31 Djossou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1080. 32 Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120. 33 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paras. 42-52. 34 Alvarez v. Canada (Minister of Minister of Citizenship and Immigration), 2014 FC 702, para. 29. 35 Canada v. South Yukon Forest Corporation, 2012 FCA 165, para. 46. 36 Dunsmuir v. New Brunswick, 2008 SCC 9. 37 Kanga v. Canada (Minister of Citizenship and Immigration), 2012 FC 482, para. 11. 38 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, para. 38. 39 Akuffo, ibid., para. 46. 40 Akuffo, supra, footnote 39, para. 47. 41 Akuffo, supra, footnote 39, para. 50. 42 Sajad v. Canada (Minister of Citizenship and Immigration), 2014 FC 1107, at para. 26; and Allalou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1084, at para. 20. 43 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859, at para. 18. 44 Yin v. Canada (Minister of Citizenship and Immigration), 2014 FC 1209. 45 Yin, ibid., paras. 33 and 34. 46 Yin, ibid., para. 36. 47 Yin, ibid., para. 37. 48 Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321; Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913 at paras. 42-42: Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120 at paras. 24-25. 49 RAD Exhibit 4, RPDR, pp. 356-358. 50 Although nothing substantial turns on it, it is to be noted that this was the second "Exhibit 11". The first Exhibit 11 is listed on the Consolidated List of Documents found in the RPDR at p. 13 as a February 21, 2014 disclosure. 51 RAD Exhibit 4, RPDR, pp. 359-366. 52 RAD Exhibit 4, RPDR, p. 7. 53 RAD Exhibit 4, RPDR, pp. 367-369. 54 Mannan v. Canada (Minister of Citizenship and Immigration), 2015 FC 144. 55 Refugee Protection Division Rules (SOR/2012-256). 56 Mannan, ibid, para. 41. 57 Mannan, supra, footnote 55, para. 45. 58 Shuaib v. Canada (Minister of Citizenship and Immigration), 2013 FC 596. 59 Mannan, supra, footnote 55, paras. 49-50. 60 Just prior to rendering this decision the appellants submitted the additional April 8, 2013 authority of N.R. v. Canada (Minister of Citizenship and Immigration) 2015 FC 425 which is very similar to Mannan and supportive of the appellants' position. It is been marked RAD Exhibit 7. 61 Refugee Appeal Division Rules (SOR/2012-257). 62 Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913. Maybe then --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01965 / VB4-01966