The Court held that the standard of review that the Federal Court will adopt in reviewing a decision by the Refugee Appeal Division [“RAD”] with respect to its standard of intervention of the RPD decision is that of reasonableness and not correctness.  The Court confirmed that the RAD owes deference to the RPD’s credibility findings.

Facts:

Mr. Akuffo is a citizen of Ghana, who alleged persecution on account of his homosexuality from the vigilantes and absence of state protection.

The RPD found:

  • [8] […] The tribunal is of the opinion that risking making love in a house where there is twenty people inside and then walking hand in hand in the streets of Ghana after having been caught making love, is not compatible with the behavior of someone who declared having been scared once caught in the act, nor with the behavior of someone who claims to have been secretive and low key about his relationship for eight years.

The RPD had a serious doubt that someone who is familiar with the laws of the country would engage in such risky behaviour.  The RPD found the claim to be devoid of credibility.

The Applicant appealed to the RAD.  RAD confirmed the RPD’s decision.  With respect to credibility, the RAD held that RPD’s credibility findings must be assessed on a reasonableness standard.  The RAD found that the RPD’s decision falls within the range of possible acceptable outcomes.

Mr. Akuffo seeks a judicial review of the decision by the RAD.

Issues:

What is the Court’s Standard of Review?

What is the standard of intervention to be applied by the RAD to RPD determinations of fact or mixed fact and law and credibility findings?

Is the RAD’s decision reasonable?

Analysis:

1) Standard of Review of a RAD Decision:

The Court starts out by summarizing and rejecting the finding of Justice Phelan in Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799 [Huruglica] on the standard of review for the Court’s consideration of the RAD’s standard of intervention.

Justice Phelan in Huruglica held that there is no jurisprudence on this issue but the Court should apply the correctness standard when reviewing the standard of intervention chosen by the RAD sitting in appeal of RPD decisions.

First, the Court notes that, according to Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11, in order for the Court to apply correctness standard the question of law has to be of importance to the legal system and the has to fall outside the adjudicator’s expertise.

Second, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers] Justice Binnie stated that an issue of general importance is one “whose resolution has significance outside the operation of the statutory scheme under consideration.”

In this case the Court found that the interpretation of the RAD standard of intervention for RPD decisions does not involve a question of central importance to the legal system as a whole and would therefore attract the standard of reasonableness and not correctness by this Court.  The application of the RAD Provision to the facts of this case is a question of mixed fact and law and would also attract the reasonableness standard.

2) Standard of Intervention Applied by the RAD to RPD:

There is a consensus at the Federal Court that the judicial review regime does not apply to appeals of RPD before RAD.  The RAD should avoid using the jurisprudence and the vocabulary as developed in judicial review.

When no hearing is held before the RAD, the RAD owes deference to the RPD’s credibility findings.  However, the Court held that deference is only owned by the RAD to the RPD’s credibility findings and where the RPD enjoys a particular advantage in reaching its conclusion.

3) Is the RAD’s Decision Reasonable?

The Court concluded that the RAD gave proper deference to the RPD’s credibility findings, which were sufficient for the RAD to confirm the RPD’s conclusion that the Applicant was not a convention refugee.  As such, it was reasonable that the RAD deferred to the RPD’s credibility findings.

The application for judicial review is dismissed.

The following questions were certified:

(a)                  What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of sections 110, 111, 162 and 171 of the Immigration and Refugee Protection Act, SC 2001, c 27, and more specifically when reviewing its determination of the level of deference owed to the Refugee Protection Division’s credibility findings?

(b)                  Within the Refugee Appeal Division’s statutory framework where the appeal proceeds on the basis of the Refugee Protection Division record of the proceedings, what is the level of deference owed by the Refugee Appeal Division to the Refugee Protection Division findings of fact and of mixed fact and law, more specifically to its credibility findings?