Sisman v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.013

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: May 20, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.013;2015 FC 930

Sisman v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.013

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Currently being edited for F.T.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] F.T.R. TBEd. AU.013

Mustafa Sisman (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5149-14; 2015 FC 930; 2015 CF 930)

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

Federal Court

Boswell, J.

July 29, 2015.

Summary:

The Refugee Protection Division of the Immigration and Refugee Board denied Sisman's claim for refugee protection. He appealed. The Refugee Appeal Division (RAD) dismissed the appeal, applying a correctness standard of review for questions of law and a reasonableness standard for questions of fact and mixed fact and law. Sisman applied for judicial review and proposed the following certified question: What is the scope of the review conducted by the Refugee Appeal Division when it considers an appeal of a decision of the Refugee Protection Division?

The Federal Court allowed the application for judicial review but declined to certify the question. The matter was remitted for redetermination by a different panel of the RAD.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - [See Aliens - Topic 1326.6 ].

Aliens - Topic 1326.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Duties of - The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied Sisman's claim for refugee protection - He appealed - The Refugee Appeal Division (RAD) dismissed the appeal, applying a correctness standard of review for questions of law and a reasonableness standard for questions of fact and mixed fact and law - Sisman applied for judicial review - The Federal Court allowed the application - The case law was divided as to how the RAD should review the RPD's findings of fact and mixed fact and law - However, both lines of cases had condemned the RAD's approach here - Applying the reasonableness standard when reviewing an RPD decision was typically an unreasonable error of law - The RAD had to assume its role as an appellate body - It was neither justifiable nor reasonable for the RAD not to make its own assessment of the case in clear terms - Sisman was entitled to an appeal before the RAD, not just a recitation of the facts found by the RPD - The matter was remitted for redetermination - See paragraphs 18 to 29.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied Sisman's claim for refugee protection - He appealed - The Refugee Appeal Division (RAD) dismissed the appeal, applying a correctness standard of review for questions of law and a reasonableness standard for questions of fact and mixed fact and law - Sisman applied for judicial review - The Federal Court reviewed the RAD's decision regarding the standard of review to apply to the RPD on a standard of reasonableness - This standard also applied to the RAD's factual findings and its assessment of the evidence before it was entitled to deference - See paragraphs 15 to 17.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1326.6 ].

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - The Refugee Protection Division of the Immigration and Refugee Board denied Sisman's claim for refugee protection - He appealed - The Refugee Appeal Division dismissed the appeal, applying a correctness standard of review for questions of law and a reasonableness standard for questions of fact and mixed fact and law - Sisman applied for judicial review and proposed the following certified question: What is the scope of the review conducted by the Refugee Appeal Division when it considers an appeal of a decision of the Refugee Protection Division? - The Federal Court allowed the application for judicial review but declined to certify the question - Many cases had already proposed the same or a similar question - It was contrary to the purpose of s. 74(d) of the Immigration and Refugee Protection Act to certify the question - While certifying duplicative questions could be useful in some circumstances, here there was a prior appeal that appeared likely to proceed - There was no need to flood the Court of Appeal with every case that raised the same issue in the interim - See paragraphs 30 to 37.

Cases Noticed:

Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007), 370 N.R. 344; 2007 FCA 385, refd to. [para. 8].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 14 Admin. L.R.(5th) 181; 2010 ABCA 399, refd to. [para. 9].

Fang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 608; 2008 FC 856, refd to. [para. 12].

Yin v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 486; 2014 FC 1209, refd to. [para. 15].

Huruglica et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 F.T.R. 241; 2014 FC 799, refd to. [para. 15].

Spasoja v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. SE.026; 2014 FC 913, refd to. [para. 15].

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. 15].

Akuffo v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. NO.011; 2014 FC 1063, refd to. [para. 15].

Djossou v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. NO.016; 2014 FC 1080, refd to. [para. 15].

Broderick v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AP.054; 2015 FC 491, refd to. [para. 15].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 347 B.C.A.C. 1; 593 W.A.C. 1; 452 N.R. 340; 2013 SCC 67, refd to. [para. 15].

Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. OC.037; 2014 FC 952, agreed with [para. 16].

Huang v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 276; [2014] 4 F.C.R. 436; 2013 FC 576, refd to. [para. 16].

Atomic Energy of Canada Ltd. v. Wilson (2015), 467 N.R. 201; 2015 FCA 17, refd to. [para. 16].

Siliya et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 16; 2015 FC 120, refd to. [para. 17].

Lin v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 759; 2008 FC 1052, refd to. [para. 17].

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. 17].

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 201; 2014 FC 494, refd to. [para. 18].

Halifax (Regional Municipality) v. Anglican Diocesan Centre Corp. et al. (2010), 290 N.S.R.(2d) 361; 920 A.P.R. 361; 2010 NSCA 38, refd to. [para. 18].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 20].

Budhai et al. v. Canada (Attorney General), [2003] 2 F.C. 57; 292 N.R. 379; 2002 FCA 298, refd to. [para. 20].

Eng. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 297; 2014 FC 711, refd to. [para. 21].

Triastcin v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. OC.033; 2014 FC 975, refd to. [para. 21].

Yetna v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. SE.018; 2014 FC 858, refd to. [para. 21].

Ozdemir v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.056; 2015 FC 621, refd to. [para. 21].

Ching v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JN.037; 2015 FC 725, refd to. [para. 23].

Bahta et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. DE.045; 2014 FC 1245, refd to. [para. 23].

Pataraia v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 215; 2015 FC 465, refd to. [para. 24].

Ali v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 210; 2015 FC 500, refd to. [para. 24].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 372 D.L.R.(4th) 567; 2014 FCA 114, refd to. [para. 24].

Khachatourian v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 55; 2014 FC 182, refd to. [para. 26].

Denbel v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.061; 2015 FC 629, refd to. [para. 26].

Awet et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JL.004; 2015 FC 759, refd to. [para. 27].

Zhang v. Canada (Minister of Citizenship and Immigration), [2014] 4 F.C.R. 290; 446 N.R. 382; 2013 FCA 168, refd to. [para. 32].

Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 445; 2014 FC 1072, refd to. [para. 33].

Nnah v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 318; 2015 FC 77, refd to. [para. 33].

Sanchez v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 901; 2006 FC 921, refd to. [para. 35].

Varela v. Canada (Minister of Citizenship and Immigration), [2010] 1 F.C.R. 129; 391 N.R. 366; 2009 FCA 145, refd to. [para. 37].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 37].

Counsel:

Micheal Crane, for the applicant;

Marie-Louise Wcislo, for the respondent.

Solicitors of Record:

Micheal Crane, Toronto, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on May 20, 2015, by Boswell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on July 29, 2015.