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lundi 11 avril 2016

Assessment by the Refugee Appeal Division of the Immigration and Refugee Board of Canada under subsection 110(6) of the Immigration and Refugee Protection Act

By Nilufar Sadeghi
Joseph W. Allen & Associates

In Tchangoue v. Canada (Citizenship and Immigration) 2016 FC 334, an application for judicial review is brought forward by Ms. Tchangoue of a decision by the Immigration and Refugee Board of Canada’s Refugee Appeal Division (hereby referred to as the RAD), where it dismissed Ms. Tchangoue’s appeal of the decision of the Refugee Protection Division (hereby referred to as the RPD) refusing her refugee claim.

Pertinent Legislation
Immigration and Refugee Protection Act (S.C. 2001, c. 27)

110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.
[…]
Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.
[…]
Hearing
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision with respect to the refugee protection claim; and
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
Context

Ms. Tchangoue is a citizen of Cameroon who claimed refugee protection in Canada in January 2015 based on her fear of persecution resulting from her activities supporting the educational rights of young women and members of the lesbian, gay, bisexual and transgendered (LGBT) community in Cameroon. Her refugee claim before the RPD was refused on April 15th 2015 based on her lack of credibility and the lack of corroborative documentary evidence. Ms. Tchangoue filed an appeal of her refused refugee claim on May 5th 2015 before the RAD. She requested to provide additional documentary evidence in the context of said appeal, and that an oral hearing be held as per subsection 110(6) of the Immigration and Refugee Protection Act (hereby referred to as the IRPA). The RAD admitted the new evidence, but gave it little probative value, as it doubted the authenticity of the documents. As little weight was given to the new evidence, no oral hearing was held and Ms. Tchangoue’s appeal was refused.

Federal Court’s Decision

The determinative issue before the Federal Court was the application of subsection 110(6) of the IRPA by the RAD in Ms. Tchangoue’s case.

The Federal Court enumerates the list of new documents submitted by Ms. Tchangoue to the RAD in the context of her appeal, and proceeds to summarize the RAD’s issues and doubts pertaining to said documents. Indeed the RAD negated the probative value of the submitted documentary evidence as Ms. Tchangoue had not provided originals, did not explain why said documentation was not submitted initially in the context of her hearing before the RPD, and as it had concerns as to the authenticity of the new evidence provided. The RAD also referred to Devundarage v. Canada (Minister of Citizenship and Immigration) 2005 FC 245, where the Federal Court stated the authenticity of documents submitted by a refugee claimant may be questioned when said claimant’s narrative of persecution is believed to be fabricated.

The Federal Court then continues its analysis of the RAD’s assessment under subsection 110(6) of the IRPA in Ms. Tchangoue’s case and states:
“ [17] I find that it was unreasonable in the circumstances of this case for the RAD not to have convened an oral hearing so as to provide the Applicant the opportunity to address the RAD’s concerns regarding the authenticity of the new documents. This was clearly a serious issue which undermined the Applicant’s credibility and which was not before the RPD. Moreover, the new documents, and in particular, the medical report, the arrest warrants and the news articles were central to the decision since the absence of documentary evidence regarding the two (2) day educational forum and the Applicant’s detention and mistreatment by the authorities in Cameroon was unequivocally determinative in the RPD’s decision. If accepted, the new evidence would have justified allowing the refugee protection claim.
[18] While I recognize that the decision to hold an oral hearing is discretionary, in my view, the RAD committed a reviewable error in failing to conduct a proper analysis of whether the criteria for holding an oral hearing set out in subsection 110(6) of the IRPA were met and if so, whether it should exercise its discretion and grant an oral hearing. With the exception of the RAD’s comment that no oral hearing would be allowed given the little weight it gave to the documents provided as new evidence, the decision is silent on the application of the criteria set out in subsection 110(6) of the IRPA and the exercise of discretion. With due respect to the RAD and its expertise in these matters, the weight given to the new evidence should not have been the determining factor in its decision not to hold an oral hearing. Accordingly, for the reasons above, I find that the RAD’s decision is unreasonable and thus cannot stand.”
Ms. Tchangoue’s application for judicial review was therefore allowed and her claim was sent back to a different Refugee Appeal Division panel for a redetermination of her refugee claim.

To read this decision in its entirety, click here.


Key words: Immigration Law, Refugee Appeal Division, Oral Hearing

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