Palden v. Canada (Minister of Citizenship and Immigration), 2015 FC 787

• Judge: Locke, J.
• Court: Federal Court (Canada)
• Case Date: May 27, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 787;(2015), 483 F.T.R. 245 (FC)

Palden v. Can. (M.C.I.) (2015), 483 F.T.R. 245 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.028

Tenzin Palden (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4907-14; 2015 FC 787)

Indexed As: Palden v. Canada (Minister of Citizenship and Immigration)

Federal Court

Locke, J.

June 25, 2015.

Summary:

Palden was born in India to Tibetan parents. He claimed refugee protection, on the basis that he did not have citizenship in India, and that he feared deportation from India to China. He alleged that the Indian passport he used when he travelled to Canada was fraudulent, and that he had destroyed it on the instruction of his agent. The Refugee Protection Division denied his claim, finding that Palden was born as an Indian citizen and had a genuine passport, and therefore the appropriate country of reference for his refugee claim was India. The Refugee Appeal Division, on the standard of review of reasonableness, dismissed the appeal. Palden applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See first Aliens - Topic 1326.1 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - [See second Aliens - Topic 1326.1 ].

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - This was a judicial review of a decision of the Refugee Appeal Division (RAD) dismissing the applicant's appeal against the decision of the Refugee Protection Division (RPD) - The applicant argued that the RAD erred in its standard of review analysis - The Federal Court stated that "[t]here is some disagreement within this Court as regards the degree of deference that should be shown by the RAD on an appeal from the RPD ... . However, there does appear to be a consensus that the RAD owes deference to the RPD in cases in which the credibility of a witness is critical or determinative, or where the RPD enjoys a particular advantage over the RAD in reaching a specific conclusion ... . There is also consensus that, because the proceeding before the RAD is an appeal (as opposed to judicial review), it is an error for it to apply a standard of review of reasonableness, which concerns judicial review proceedings, not appeal ... . In my view, the RAD was correct to use deference in its review of the RPD's findings that were based on the credibility of the applicant's testimony. Though the RAD erred in referring to the standard of review of the RPD decision as reasonableness, I am satisfied that this error did not negatively affect its assessment of the applicant's credibility. Even if the RAD had applied a 'palpable and overriding error' test, the result would not have changed in my view" - See paragraphs 9 to 12.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - The applicant was born in India to Tibetan parents - He claimed refugee protection on the basis that he did not have citizenship in India, and that he feared deportation from India to China - He alleged that the Indian passport he used when he travelled to Canada was fraudulent and that he had destroyed it on the instruction of his agent - The Refugee Protection Division (RPD) found that the applicant was born as an Indian citizen and had a genuine passport, and therefore the appropriate country of reference for his refugee claim was India - The Refugee Appeal Division (RAD) dismissed the appeal - On judicial review, the applicant argued that the RAD erred in concluding that the passport was genuine - The Federal Court disagreed - There were several reasons to doubt the truthfulness of the applicant's testimony: (1) he did not need a fraudulent passport to leave India, as he had a genuine identity certificate; (2) the passport was vetted by authorities in both India and Canada on several occasions; and (3) he destroyed the passport - It was reasonable to draw an inference that the passport would not have assisted the applicant's case - The applicant's testimony was a matter of credibility, on which the RAD was correct to defer to the RPD - There was no other evidence that the applicant's passport was not genuine - See paragraphs 15 to 20.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 4].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 4].

Huruglica et al. v. Canada (Minister of Citizenship and Immigration) (2014) 461 F.T.R. 241; 2014 FC 799, refd to. [para. 10].

Spasoja v. Canada (Minister of Citizenship and Immigration) (2014), 464 F.T.R. 160; 2014 FC 913, refd to. [para. 10].

Alyafi v. Canada (Minister of Citizenship and Immigration) (2014), 465 F.T.R. 114; 2014 FC 952, refd to. [para. 10].

Akuffo v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 94; 2014 FC 1063, refd to. [para. 10].

Djossou v. Canada (Minister of Citizenship and Immigration) (2014), 467 F.T.R. 289; 2014 FC 1080, refd to. [para. 10].

Green et al. v. Canada (Minister of Citizenship and Immigration) (2015), 479 F.T.R. 231; 2015 FC 536, refd to. [para. 10].

Denbel v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.061; 2015 FC 629, refd to. [para. 10].

Yetna v. Canada (Minister of Citizenship and Immigration) (2014), 463 F.T.R. 128; 2014 FC 858, refd to. [para. 10].

Ali v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 210; 2015 FC 500, refd to. [para. 10].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2015), 481 F.T.R. 8; 2015 FC 621, refd to. [para. 11].

Ching v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JN.037; 2015 FC 725, refd to. [para. 11].

Brodrick v. Canada (Minister of Citizenship and Immigration) (2015), 479 F.T.R. 58; 2015 FC 491, refd to. [para. 12].

Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; 31 N.R. 34 (F.C.A.), refd to. [para. 15].

Manzi v. Canada (Minister of Citizenship and Immigration) (2005), 334 N.R. 297; 2005 FCA 126, refd to. [para. 23].

Williams v. Canada (Minister of Citizenship and Immigration) - see Manzi v. Canada (Minister of Citizenship and Immigration).

Wanchuk v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 364; 2014 FC 885, refd to. [para. 26].

Dolma v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JN.041; 2015 FC 703, refd to. [para. 26].

Tretsetsang v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 206; 2015 FC 455, refd to. [para. 26].

Dolker v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 60; 2015 FC 124, refd to. [para. 26].

Counsel:

D. Clifford Luyt, for the applicant;

Ildiko Erdei, for the respondent.

Solicitors of Record:

D. Clifford Luyt, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on May 27, 2015, before Locke, J., of the Federal Court, who delivered the following judgment and reasons, dated June 25, 2015, at Montreal, Quebec.