MUDALIGE DON HEWAGAMA MANIK MADAVA Applicant v. THE MINISTER OF, 2017 FC 149

Date: 20170208 Docket: IMM-3133-16 Citation: 2017 FC 149 Ottawa, Ontario, February 8, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:MUDALIGE DON HEWAGAMA MANIK MADAVAApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Mudalige Don Hewagama Manik Madava (the “Applicant”) seeks judicial review of the decision of the Immigrationand Refugee Board, Refugee Appeal Division (the “RAD”), dated June 28, 2016. [2] The RAD dismissed the Applicant’s appeal from the negative determination of his refugee protection claim before theRefugee Protection Division (the “RPD”).

The RPD dismissed his claim on the basis of negative credibility findings. [3] The Applicant is a citizen of Sri Lanka. He claims to be at risk from the Sri Lankan Army Intelligence and Police, due to hisoccupation as a journalist and a reporter.

The RPD did not believe his account about abduction and torture. [4] In his appeal to the RAD, the Applicant sought to introduce new evidence and requested an oral hearing. [5] The RAD determined that the new evidence, consisting of “updated country condition reports 2016” and articles relating tofailed asylum-seekers, did not meet the criteria of “new evidence” within the meaning of s. 110(4) of the Immigration and RefugeeProtection Act, S.C. 2001, c. 27 (the “Act”), and declined to allow an oral hearing. [6] In its decision, the RAD reviewed the findings of the RPD and confirmed all of the negative findings, concluding that theApplicant was not credible.

It confirmed the decision of the RPD and dismissed the appeal. [7] The RAD referred to the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v.Huruglica (2016), 2016 FCA 93 , 396 D.L.R. (4th) 527 (F.C.A). It said the following about its role in determining theApplicant’s appeal: In Huruglica, the Court determined that the RAD is to conduct a “hybrid appeal”.

It is to review all aspects of the RPD’s decision andcome to an independent assessment of the Appellant’s refuge claim, deferring to the RPD only where the lower tribunal enjoys aparticular advantage in reaching a conclusion. Where the RAD’s assessment departs from that of the RPD, the RAD must substitute itsown determination. [8] The Applicant now argues that the RAD committed a reviewable error by failing to independently assess his claim, asrequired by Huruglica, supra.

He submits that the RAD merely endorsed the findings of the RPD. [9] The Applicant also argues that the RAD erred by failing to accept the “new objective country evidence” as new evidence. [10] The Minister of Citizenship and Immigration (the “Respondent”) submits that the RAD treated the decision of the RPD as oneturning upon the credibility of the Applicant, subject to review upon the standard of reasonableness.

He argues that the RAD carefullyreviewed the negative credibility findings of the RPD and found no error. [11] The Respondent argues that the RAD reasonably excluded the new evidence because the evidence was available prior to theRPD hearing. [12] The first question to be addressed is the standard of review. I will begin with the first standard of review, that is the standardof review to be applied by this Court to the RAD. [13] The appropriate standard of review for this Court when reviewing a decision of the RAD is reasonableness; see Huruglica,supra at paragraph 35.

Accordingly, the Court should not interfere if the RAD’s decision is intelligible, transparent, justifiable, anddefensible in respect of the facts and the law; see the decision in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190at paragraph 47. [14] Next, I refer to the second standard of review, that is the standard of review to be applied by the RAD upon an appeal fromthe RPD. [15] In a judicial review of a decision of the RAD, the reviewing court must look at the standard of review applied by the RAD tothe RPD’s decision.

The Federal Court of Appeal in Huruglica, supra at paragraph 77 said: … I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the

application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law. [16] According to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1S.C.R. 190, there are generally only two standards of review, that is reasonableness and correctness.

If the standard of reasonablenessdoes not apply, only the standard of correctness remains to be applied by the RAD in its review of certain issues before the RPD. [17] At paragraph 103, of Huruglica, supra, the Federal Court of Appeal concluded: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, whichraised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard.

Thus, aftercarefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by theappellant, the RPD erred.

Having done this, the RAD is to provide a final determination, either by confirming the RPD decision orsetting it aside and substituting its own determination of the merits of the refugee claim. … [18] In my opinion, the paragraph quoted above means that the RAD must apply a correctness standard when reviewing decisionsof the RPD which do not raise issues of the credibility of oral evidence. [19] Upon considering the written and oral submissions of the parties, I agree with the Applicant that in this case, the RAD did notconduct its own assessment of the claim.

Rather, it referred to specific findings made by the RPD and simply endorsed those findings. [20] The RAD was too deferential. Its decision does not clearly show that it exercised independent judgment. Such failure wasfound to be an error in the decision in Khachatourian v. Canada (Minister of Citizenship and Immigration), 2015 FC 182.

In my opinion,the undue deference by the RAD here is a reviewable error. [21] In these circumstances, it is not necessary for me to deal with the remaining issue. [22] In the result, the application for judicial review is allowed, the decision is set aside and the matter remitted to a differentlyconstituted panel for re-determination in accordance with the Federal Court of Appeal decision in Huruglica, supra. [23] Counsel for the Applicant requested that I certify the same question that was proposed for certification in Sinnaraja v.

Canada(Minister of Citizenship and Immigration), 2016 FC 778, that is: Does the RAD owe any degree of deference to the RPD's finding on credibility? If so, what degree of deference? [24] Counsel for the Respondent opposes certification of this question. [25] I agree with the submissions of the Respondent on this point. [26] The error in the present proceeding does not turn on the credibility of the Applicant’s oral evidence. The proposed questionfor certification is not dispositive of this application for judicial review and will not be certified.

JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the decision is set aside and the matter remitted toa differently constituted panel for re-determination in accordance with the Federal Court of Appeal decision in Canada (Minister ofCitizenship and Immigration) v. Huruglica, 369 D.L.R. (4th) 527 (F.C.A.). There is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3133-16 STYLE OF CAUSE: MUDALIGE DON HEWAGAMA MANIK MADAVA v.

MCI PLACE OF HEARING: Toronto, OntarioDATE OF HEARING: January 23, 2017JUDGMENT AND reasons: HENEGHAN J.

DATED: February 8, 2016 APPEARANCES : Robert Israel Blanshay For The Applicant Suzanne M. Bruce For The Respondent SOLICITORS OF RECORD : Robert Israel Blanshay Professional Corporation Barrister & Solicitor Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada For The Respondent