Tota v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JL.048

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: April 27, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. JL.048;2015 FC 890

Tota v. Can. (M.C.I.), [2015] F.T.R. TBEd. JL.048

MLB being edited

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

Temp. Cite: [2015] F.T.R. TBEd. JL.048

Mevlan Tota (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2798-14; 2015 FC 890)

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

Federal Court

Boswell, J.

July 21, 2015.

Summary:

Tota was a citizen of Albania who claimed to fear persecution in that country because he had actively supported the Socialist Party. The Refugee Protection Division of the Immigration and Refuge Board (RPD) found that Tota had status in Italy that was substantially similar to that of a citizen. The RPD concluded that it did not need to consider any risk in Albania, and instead assessed whether Tota would be at risk in Italy. Although Tota had received threatening phone calls while in Italy, the RPD determined that the Italian state could adequately protect him and he could apply for asylum in Italy if necessary. The RPD therefore found that he was excluded from protection by article 1E of the Convention Relating to the Status of Refugees. The Refuge Appeal Division (RAD) dismissed Tota's appeal. Tota applied for judicial review, raising the following issues: "1. What standard of review by this Court applies to the RAD's decision? 2. Did the RAD apply an appropriate standard of review to the RPD's decision? 3. Did the RAD err by not holding an oral hearing? 4. Did the RAD err by excluding the Applicant's new evidence? 5. Was the RAD's determination that the Applicant was excluded by article 1E reasonable?"

The Federal Court dismissed the application. The court determined the issues as follows: (1) The RAD's decision should be reviewed on the reasonableness standard. (2) Although the RAD erred by adopting a reasonableness standard of review, it did not unreasonably defer to the RPD's assessment of the facts and application of article 1E. On the contrary, the RAD independently reviewed and assessed all of the evidence. (3) Although the RAD erred in holding that Tota had not asked for an oral hearing, Tota had not complied with the requirement of making "full and detailed submissions regarding ... why the Division should hold a hearing ..." (RAD Rules, s. 3(3)(g)(v)). Having failed to properly argue the issue at first instance, it was inappropriate for Tota to complain about the RAD's oversight now. Further, the alleged error did not affect the disposition of the judicial review application. (4) The RAD's reliance on Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007, FCA) was reasonable in interpreting s. 110(4) which set out when new evidence was admissible. (5) The RAD's determination that Tota was excluded by article 1E was reasonable.

Aliens - Topic 1329

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to hearing - See paragraphs 29 to 32.

Aliens - Topic 1330.5

Admission - Refugee protection, Convention refugees and persons in need of protection - - Where claimant has rights of nationals of country other than homeland - See paragraphs 54 to 58.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - See paragraphs 33 to 53.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - See paragraphs 15 to 28.

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - See paragraphs 33 to 53.

Counsel:

Christina M. Gural, for the applicant;

Neeta Logsetty, for the respondent.

Solicitors of Record:

Christina M. Gural, 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 April 27, 2015, by Boswell, J., of the Federal Court, who delivered the following reasons for judgment on July 21, 2015.