Taqadees et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.007

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: April 08, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.007;2015 FC 909

Taqadees v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.007

MLB being edited

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

[French language version follows English language version]

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Temp. Cite: [2015] F.T.R. TBEd. AU.007

Rabia Taqadees and Fiza Nadeem (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-798-14; 2015 FC 909; 2015 CF 909)

Indexed As: Taqadees et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Boswell, J.

July 24, 2015.

Summary:

The applicants were a mother and daughter who fled Pakistan, fearing persecution for being Shia Muslims. The Refugee Protection Division of the Immigration and Refugee Board rejected the applicants' claim for refugee protection on credibility concerns and on the basis that Karachi was an internal flight alternative for the applicants. The Refugee Appeal Division (RAD), applying a reasonableness standard, dismissed the applicants' appeal. The applicants sought judicial review.

The Federal Court allowed the application. The RAD's decision was set aside and the matter was remitted for redetermination.

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 second Aliens - Topic 1334 ].

Aliens - Topic 1326.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Duties of - [See second Aliens - Topic 1334 ].

Aliens - Topic 1334

Admission - Refugee Protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The applicants were a mother and daughter who fled Pakistan, fearing persecution for being Shia Muslims - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the applicants' claim for refugee protection on credibility concerns and on the basis that Karachi was an internal flight alternative for the applicants - The Refugee Appeal Division (RAD), applying a reasonableness standard, dismissed the applicants' appeal - The applicants sought judicial review - At issue was the standard of review of the RAD's determination as to the scope of its review of the RPD decision - The Federal Court, having noted that the case law was divided as to the standard of review that the RAD should apply, held that the RAD's decision was to be reviewed on a standard of reasonableness - This standard also applied to the RAD's factual findings - The RAD's decision was not to be disturbed unless it was not "justifiable, intelligible, transparent and defensible in respect of the facts and the law" - See paragraphs 11 to 14.

Aliens - Topic 1334

Admission - Refugee Protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The applicants were a mother and daughter who fled Pakistan, fearing persecution for being Shia Muslims - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the applicants' claim for refugee protection on credibility concerns and on the basis that Karachi was an internal flight alternative (IFA) for the applicants - The Refugee Appeal Division (RAD), applying a reasonableness standard, dismissed the applicants' appeal - The applicants sought judicial review - The Federal Court allowed the application - The RAD had an appellate function - It could not limit its analysis merely to whether the RPD had acted reasonably and had reached a decision that was reasonable - Applying the reasonableness standard, as here, was typically an error as it denied appellants the appeal to which they were entitled - While the RPD's credibility finding might have survived no matter what standard of review was applied, the same could not be said for the IFA finding - The RAD had refused to conduct its own analysis of the IFA evidence because it was applying the reasonableness standard - This was an error - The IFA finding depended on documentary evidence, which the RAD could assess just as well as the RPD - As the RAD might have reached a different result had it not erroneously applied the reasonableness standard, its decision was not reasonable - See paragraphs 15 to 31.

Cases Noticed:

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 38 Alta. L.R.(5th) 63; 2010 ABCA 399, refd to. [para. 7].

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. 9].

Yin v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 486; 2014 FC 1209, refd to. [para. 11].

Huruglica et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. AU.047; 2014 FC 799, refd to. [para. 12].

Spasoja v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. SE.026; 2014 FC 913, refd to. [para. 12].

Akuffo v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. NO.011; 2014 FC 1063, refd to. [para. 12].

Djossou v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. NO.016; 2014 FC 1080, refd to. [para. 12].

Broderick v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AP.054; 2015 FC 491, refd to. [para. 12].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 12].

Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. OC.037; 2014 FC 952, agreed with [para. 13].

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. 13].

Atomic Energy of Canada Ltd. v. Wilson (2015), 467 N.R. 201; 2015 FCA 17, refd to. [para. 13].

Siliya et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 16; 2015 FC 120, refd to. [para. 14].

Mohamed et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 300; 2015 FC 758, refd to. [para. 14].

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. 14].

Fernandopulle v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 385; 253 D.L.R.(4th) 425; 2005 FCA 91, refd to. [para. 15].

British Columbia Society for the Prevention of Cruelty to Animals v. Farm Industry Review Board (B.C.), [2013] B.C.T.C. Uned. 2331; 67 Admin. L.R.(5th) 152; 2013 BCSC 2331, refd to. [para. 17].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 19].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, 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].

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].

Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 445; 2014 FC 1072, refd to. [para. 28].

Counsel:

Naseem Mithoowani, for the applicants;

Mary Matthews, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicants;

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

This application was heard at Toronto, Ontario, on April 8, 2015, by Boswell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on July 24, 2015.