Indexed As: Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) Federal Court Shore, J. May 26, 2014.

Transcription

1 Oscar Iyamuremye, Jean de Dieu Ntibeshya, Jeanine Umuhire et Karabo Greta Ineza (partie demanderesse) v. Le Ministre de la Citoyenneté et de l'immigration (partie défenderesse) (IMM ; 2014 CF 494; 2014 FC 494) Indexed As: Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) Federal Court Shore, J. May 26, Summary: The applicants applied to be recognized as refugees or persons in need of protection (Immigration and Refugee Protection Act, ss. 96 and 97). The Refugee Protection Division of the Immigration and Refugee Board dismissed the application. The applicants appealed. The Refugee Appeal Division (RAD) dismissed the appeal. The applicants applied for judicial review of the RAD decision arguing, inter alia, that the RAD made a jurisdictional error. The Federal Court allowed the application and referred the matter for redetermination before a differently constituted panel. Editor's Note: The underlining in this case is reproduced as it appeared in the original judgment (i.e., the underlining and double underlining is that of the judge). Aliens - Topic 1331 Evidence - The applicants sought refugee protection - The Refugee Protection Division (RPD) dismissed the application - The Refugee Appeal Division (RAD) in dismissing the applicants' appeal, refused to admit new evidence presented by the applicants - The applicants applied for judicial review - The Federal Court opined that it was reasonable for the RAD to have referred to the factors set out in Raza v. MCI (FCA 2007) in analysing the admissibility of fresh evidence under s. 110(4) of the Immigration and Refugee Protection Act - The court considered that even if the RPD had been aware of the new evidence, it was highly doubtful that the evidence would have been determinative - See paragraphs 42 to 48. Aliens - Topic 1334 Appeals or judicial review - Scope of review - The Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed the applicants' application for recognition as refugees or persons in need of protection - The Refugee Appeal Division (RAD) dismissed the applicants' appeal - The applicants applied for judicial review of the RAD decision - The Federal Court agreed with the RAD that the standard of review applicable to RPD's fact findings was reasonableness - However, in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all of the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had

2 properly considered the evidence and reasonably justified its conclusion - See paragraphs 2 and 3 and 41. Aliens - Topic 1334 Appeals or judicial review - Scope of review - The applicants sought refugee protection - The Refugee Protection Division dismissed the application - The Refugee Appeal Division (RAD) in dismissed the applicants' appeal, refused to admit new evidence presented by the applicants - The applicants applied for judicial review - The Federal Court held that the standard of review to be applied to the RAD's decision respecting the admissibility of fresh evidence was reasonableness - See paragraph 43. Aliens - Topic 1336 Admission - Refugees - Appeals or judicial review - Jurisdiction - The applicants sought refugee protection - The Refugee Protection Division (RPD) dismissed the application - The Refugee Appeal Division (RAD) dismissed the applicants' appeal, holding that it was not its task to re-weigh the evidence - The applicants applied for judicial review of the RAD decision, arguing that the RAD erred in determining that it did not have jurisdiction to reassess the evidence, thus failing to exercise its jurisdiction - The Federal Court held that the RAD erred in the articulation of its own jurisdiction - On a plain reading of s. 111(1) of the Immigration and Refugee Protection Act, the RAD was allowed to render decisions on the merits of an appeal and not merely to decide whether the RPD reached its conclusion in a "reasonable" manner - The RAD therefore had the authority to undertake its own analysis of the evidence and to substitute the impugned decision with a determination that should have been made - See paragraphs 1 to 41. Immigration Appeal Division) - Standard of review - [See both Aliens - Topic 1334]. Aliens - Topic 1844 Immigration Appeal Division) - Jurisdiction - [See Aliens - Topic 1336]. Aliens - Topic 4071 Practice - Judicial review and appeals - Fresh evidence - [See Aliens - Topic 1331]. Cases Noticed: Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 1]. Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 1]. Beaudoin-Daigneault v. Richard and Registrar of Registration Division of Compton at Cookshire, [1984] 1 S.C.R. 2; 51 N.R. 288, refd to. [para. 1] Canada (Attorney General) v. White (2011), 423 N.R. 251; 2011 FCA 190, refd to. [para. 2].

3 Budhai et al. v. Canada (Attorney General), [2003] 2 F.C. 57; 292 N.R. 379; 2002 FCA 298, refd to. [para. 2]. Edmonton Police Service v. Furlong et al. (2013), 544 A.R. 191; 567 W.A.C. 191; 2013 ABCA 121, refd to. [para. 2]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 3]. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 3]. Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 3]. Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007), 370 N.R. 344; 289 D.L.R.(4th) 675; 2007 FCA 385, refd to. [para. 15]. Toney v. Royal Canadian Mounted Police et al. (2013), 448 N.R. 175; 2013 FCA 217, refd to. [para. 20]. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 29]. Canada (Minister of Citizenship and Immigration) v. Abdul (2009), 353 F.T.R. 307; 2009 FC 967, refd to. [para. 33]. Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 317 F.T.R. 118; 2007 FC 934, refd to. [para. 34]. Kumar v. Minister of National Revenue, [2004] N.R. Uned. 218; 135 A.C.W.S.(3d) 554; 2004 FCA 399, refd to. [para. 38]. Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 39]. Elezi v. Canada (Minister of Citizenship and Immigration) (2007), 310 F.T.R. 59; 156 A.C.W.S.(3d) 426; 2007 FC 240, refd to. [para. 43]. Statutes Noticed: Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97 [para. 19]; sect. 110(4) [para. 44]; sect. 110(6), sect. 111(1), sect. 111(2) [para. 19]; sect. 113 [para. 44]. Authors and Works Noticed: Driedger, E.A., Construction of Statutes (2d Ed. 1983), p. 87 [para. 29]. Counsel: Zofia Przybytkowski, for the applicants; Gretchen Timmins, for the respondent. Solicitors of Record: Zofia Przybytkowski, Montreal, Quebec, for the applicants; William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondents.

4 This application was heard in Montréal, Québec, on May 13, 2014, before Shore, J., of the Federal Court, who delivered the following decision on May 26, Editor: Elizabeth M.A. Turgeon Application allowed. Immigration Appeal Division) - Standard of review - The Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed the applicants' application for recognition as refugees or persons in need of protection - The Refugee Appeal Division (RAD) dismissed the applicants' appeal - The applicants applied for judicial review of the RAD decision - The Federal Court agreed with the RAD that the standard of review applicable to RPD's fact findings was reasonableness - However, in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all of the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion - See paragraphs 2 and 3 and 41. Immigration Appeal Division) - Standard of review - The applicants sought refugee protection - The Refugee Protection Division dismissed the application - The Refugee Appeal Division (RAD) in dismissed the applicants' appeal, refused to admit new evidence presented by the applicants - The applicants applied for judicial review - The Federal Court held that the standard of review to be applied to the RAD's decision respecting the admissibility of fresh evidence was reasonableness - See paragraph 43. Aliens - Topic 1844 Immigration Appeal Division) - Jurisdiction - The applicants sought refugee protection - The Refugee Protection Division (RPD) dismissed the application - The Refugee Appeal Division (RAD) dismissed the applicants' appeal, holding that it was not its task to re-weigh the evidence - The applicants applied for judicial review of the RAD decision, arguing that the RAD erred in determining that it did not have jurisdiction to reassess the evidence, thus failing to exercise its jurisdiction - The Federal Court held that the RAD erred in the articulation of its own jurisdiction - On a plain reading of s. 111(1) of the Immigration and Refugee Protection Act, the RAD was allowed to render decisions on the merits of an appeal and not merely to decide whether the RPD reached its conclusion in a "reasonable" manner - The RAD therefore had the authority to undertake its own analysis of the evidence and to

5 substitute the impugned decision with a determination that should have been made - See paragraphs 1 to 41. Aliens - Topic 4071 Practice - Judicial review and appeals - Fresh evidence - The applicants sought refugee protection - The Refugee Protection Division (RPD) dismissed the application - The Refugee Appeal Division (RAD) in dismissing the applicants' appeal, refused to admit new evidence presented by the applicants - The applicants applied for judicial review - The Federal Court opined that it was reasonable for the RAD to have referred to the factors set out in Raza v. MCI (FCA 2007) in analysing the admissibility of fresh evidence under s. 110(4) of the Immigration and Refugee Protection Act - The court considered that even if the RPD had been aware of the new evidence, it was highly doubtful that the evidence would have been determinative - See paragraphs 42 to 48.