Docket: IMM-14774-23
Citation: 2024 FC 1827
Ottawa, Ontario, November 18, 2024
PRESENT: The Honourable Madam Justice Strickland
BETWEEN: |
TOCHUKWU RAPHAEL NWANKWO |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Tochukwu Raphael Nwankwo, the Applicant, seeks judicial review of the decision of the Refugee Appeal Division [RAD] dismissing the Applicant’s appeal of the determination by the Refugee Protection Division [RPD] that he is neither a Convention refugee nor a person in need of protection under ss 96 and 97(1), respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Background
[2] The Applicant is a citizen of Nigeria. He claims that in 2012, while he was in high school, he was subject to intimidation, threats, and was physically assaulted by members of the Aiye gang who sought to force him to join that gang. In 2013, the Applicant obtained a basketball scholarship and related study visa permitting him to attend university in the United States [US]. He maintained his student status there until 2019 and, subsequently, was unsuccessful in obtaining a work permit in the US. He did not seek asylum there. In 2021, the Applicant entered Canada and sought refugee protection.
[3] By a decision dated June 6, 2023, the RPD found that there was no evidence that the Aiye gang sought to harm the Applicant based on any IRPA s 96 Convention grounds. Further, the RPD accepted that the Applicant was harassed and threatened by the Aiye gang and that the Aiye is a serious criminal organization. However, the RPD found that the risk to the Applicant was gang violence, which was not personalized to the Applicant and was faced generally by others in Nigeria. Accordingly, the Applicant was not a person in need of protection under s 97(1) of the IRPA. The RPD also found that the Applicant had an internal flight alternative [IFA] in Port Harcourt and that this was determinative to his case. The Applicant appealed to the RAD.
RAD’s Decision
[4] As to the grounds of appeal, the RAD noted that the Applicant’s main arguments were that the RPD had made certain errors of fact. The RAD agreed that the RPD erred in that respect. However, it found that these were background facts. It corrected the errors and found that doing so did not alter the RPD’s conclusions. The RAD noted that the Applicant also submitted, as a ground of appeal, that the RPD failed to consider his letters of support pertaining to the agents of persecution being in the area.
[5] The RAD noted that Applicant sought to introduce three new pieces of evidence but, pursuant to s 110(4) of the IRPA, declined to admit the documents. And, as it had not admitted new evidence, the Applicant’s request for an in-person hearing was refused pursuant to s 110(6) of the IRPA. The RAD agreed with the RPD that the determinative issue was the availability of an IFA in Port Harcourt.
[6] With respect to the Applicant’s concern about the RPD’s treatment of his letters of support, the RAD found that these letters spoke to his agents of persecution being in the area of his former neighborhood and ready to harm him upon his return to Nigeria, which was irrelevant. This was because the Applicant’s prior neighborhood was in Lagos while the IFA was Port Harcourt. In other words, the letters of support did not indicate that the agents of persecution are in Port Harcourt.
[7] The RAD then set out the two-part test for determining whether the Applicant could reasonably and safely live in Port Harcourt. The RAD stated that it was satisfied that the RPD applied the correct legal test to determine that there was no serious possibility of persecution or risk of harm in Port Harcourt. In doing so, the RPD had considered the Applicant’s evidence with the leading jurisprudence, along with his personal circumstances and the country information. The RAD stated that the Applicant did not challenge these determinative findings. Further, that subjective fear, as the Applicant states he has, is not a requirement to consider. In any event, “the country information outweighed his subjective fear”
.
[8] The RAD held that the Applicant did not demonstrate how the RPD erred, nor did the RAD independently find an error. The Applicant had not demonstrated that the RPD’s determinative issue was incorrect and, therefore, the RAD had nothing further to consider. As such, the RAD found that the RPD’s decision was correct and that the Applicant can reasonably and safely live in Port Harcourt. That is, he has a viable IFA in Port Harcourt.
Issues and Standard of Review
[9] The issues in this matter are:
Did the RAD breach the duty of procedural fairness owed to the Applicant?
Was the RAD’s decision reasonable?
[10] Issues of procedural fairness are to be reviewed on a correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79 and in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). Functionally, the reviewing Court is to determine whether the proceedings were fair in all of the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at paras 54–56; see also Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35; Ahousaht First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 135 at para 31).
[11] The applicable standard of review when assessing the merits of the RAD’s decision is reasonableness. When applying the reasonableness standard on judicial review, the reviewing court asks “whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
(Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99).
The Decision Was Procedurally Fair
Applicant’s position
[12] The Applicant submits that the RAD breached procedural fairness by failing to ensure that the Applicant, who was “self-represented against his will”
understood the RAD process. The Applicant submits that the RAD was required to take at least some positive steps to ensure that the Applicant could meaningfully participate (citing Olifant v Canada (Citizenship and Immigration), 2022 FC 947 at para 18 [Olifant] and Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 30 [Baker]). In that regard, the Applicant submits that his counsel abandoned him and that he provided evidence of this to the RAD. The RAD should have extended the deadline for the Applicant to submit his Notice of Appeal, informed him that he could seek new counsel, or at least allowed him to do so (citing Castroman v Canada (Secretary of State), [1994] FCJ No 962 at para 8 [Castroman]). In the absence of this guidance from the RAD, the Applicant was denied a meaningful opportunity to present his case fully and fairly (citing Baker, at para 30).
[13] The Applicant emphasizes that he never intended to represent himself at the RAD. Rather, he was forced to after his former lawyer abandoned him. As such, this is not an instance where an applicant knowingly chose to self-represent and then regrets the consequences of doing so.
[14] The Applicant submits that a higher duty of procedural fairness applies in this case because the RAD’s decision is of significant importance to him (Baker, at paras 22–28). The Applicant relies on Nemeth v Canada (Minister of Citizenship and Immigration, 2003 FCT 590 at para 13 [Nemeth], as well as Kerqeli v Canada (Citizenship and Immigration), 2015 FC 475 at para 50 [Kerqeli] as support for his position that the RPD may have more onerous obligations to provide a fair hearing in cases where claimants are self-represented. Additionally, the RPD’s Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division state that, generally, “the RPD will make allowances for self-represented litigants who are unfamiliar with the RPD’s processes and rules.”
[15] The Applicant submits that the RAD had a positive duty to ensure that he understood the nature of the proceedings and that the relevant issues – especially the determinative issues – should have been explained to him by the RAD (citing Olifant, at paras 17–18, and Singh Dhaliwal v Canada (Citizenship and Immigration), 2011 FC 201 at para 15 [Dhaliwal]).
Respondent’s position
[16] The Respondent submits that there is no merit to the Applicant’s argument that the RAD breached its obligations owed to him because he was a self-represented claimant. The RAD granted the Applicant an extension of time to proceed with his appeal, allowed him to perfect the appeal, and assessed the arguments that the Applicant presented.
[17] While the RAD has a duty to ensure its proceedings are fair, this duty does not require that the RAD act as counsel for a self-represented applicant, nor does it require the RAD to formulate arguments on their behalf. Moreover, the jurisprudence establishes that a party who chooses to proceed without a lawyer must accept the consequences of doing so (citing Alvarez Valdez v Canada (Immigration, Refugees and Citizenship), 2021 FC 796 at paras 18–19). And, while the Applicant tries to distinguish himself from these principles on the basis that he was “self-represented by force”
, he filed no affidavit evidence in support of this argument. That is, there is no sworn evidence that the Applicant did not have a chance to make his case, that he misunderstood the appeal process, or that he was otherwise unable to meaningfully participate in his appeal. Rather, the evidence is that the Applicant, after his lawyer was non-responsive, decided to prepare his own materials and put forward his own case.
[18] Further, while the Applicant cites case law that required a tribunal to ensure that the self-represented litigant understood the process, those cases are distinguishable. Nemeth involved a matter before the RPD, not the RAD. The RAD is not a first-level hearing and, unlike a first level hearing, the appellant is aware of the determinative issues that led to the rejection of their refugee claim. Nemeth has also been distinguished by this Court (citing Ait Elhocine v Canada (Citizenship and Immigration), 2020 FC 1068 at para 25). The Respondent submits that Applicant’s reliance on Kerqeli is also misplaced.
Analysis
[19] The Applicant’s procedural fairness arguments stem from his submission that he was “forced”
to represent himself and that the RAD failed in its duty to ensure that he understood the RAD process. And, as a result, that he was unable to meaningfully participate in the appeal.
[20] As a starting point, it is necessary to look at the factual circumstances surrounding the Applicant’s appeal to the RAD.
[21] The RPD issued its decision on June 6, 2023. Pursuant to s 159.91(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations] the Applicant was required to file his Notice of Appeal within 15 days after the day he received the written reasons for the decision. He was also required to perfect his appeal by filing an application record containing the prescribed materials within 30 days after the day he received the written reasons for the decision.
[22] On August 15, 2023, the Applicant filed an Application for Extension of Time to File or Perfect an Appeal [EOT Application]. In that application, he explained that the lawyer he had chosen to represent him in filing his appeal had not been responsive, and had mislead him as to the filing of his appeal, even though the Applicant had paid a retainer fee. Further, that on August 10, 2023, the lawyer advised the Applicant that he was withdrawing from the file because he had not received payment. The Applicant submitted that:
Now I'm left with no lawyer and have exceeded the time all because I relied on the lawyer I had paid to help file my case. I decided to fill out and my appellant form to defend myself and seek for an extension, if my time have not been exceeded already. I realize I don't even have the time to seek a different council without wasting any more time on my appellant form so I have had no choice but to complete this myself (as-well. I understand that my appeal my not be the best in professionalism and I ask to be pardoned for this as I am doing all of this by myself. I also pleed that my case do not get redrawn or dismissed.
[23] The Applicant provided documents, which he claimed supported that his counsel abandoned him.
[24] On August 18, 2023, the RAD issued a Notice of Decision granting the Applicant’s EOT Application and stating that the appeal was considered to be perfected as of that date. That same day, the RAD wrote to the Applicant acknowledging receipt of his Notice of Appeal. This letter provided general information related to appeals, including that applicants have the right to be represented by counsel. It states that, if counsel was obtained after providing the Notice of Appeal to the RAD, then applicants must notify the RAD registry office without delay. Similarly, in the event of a change of counsel, applicants must notify the RAD registry office and the Minister of this change.
[25] The RAD issued its decision denying the Applicant’s appeal on October 30, 2023.
[26] To the extent that the Applicant was forced to represent himself against his will, it must first be noted that the position the Applicant found himself in was not of the RAD’s doing. The Applicant, in his EOT Application, attributes his circumstance to the counsel he claims to have instructed and paid, but who withdrew after the deadline for filing the Notice of Appeal had passed.
[27] The Applicant asserts that the RAD should have extended the deadline for the Applicant and informed him that he could seek new counsel or at least allow him to do so. However, and significantly, the RAD did extend the deadline for the Applicant.
[28] As to his submission that, because the RAD did not advise him that he could retain counsel, the RAD failed in its duty to ensure that he understood the RAD process, the Applicant does not actually explain what process he feels should have been explained to him. Regardless, to address this general allegation, it is necessary to consider the scope of the RAD’s duty of procedural fairness owed to self-represented litigants.
[29] The right to a fair hearing is a fundamental tenet of procedural fairness, which must be afforded to all parties, and which, of course, includes self-represented litigants. A fair hearing requires that the applicant knows the case to be met and has a full and fair chance to respond (CPR, at para 56; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 53, citing Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 213; Dhaliwal, at para 3).
[30] In the context of self-represented litigants, decision-makers have an obligation (or positive duty) to ensure that the litigants understand the nature of the proceedings and to direct their attention to salient points of procedure (Dhaliwal, at para 15 citing Wagg v Canada, 2004 FCA 303 at paras 32–33; Olifant, at para 18).
[31] Thus, in Dhaliwal when the IAD wrongly prevented the applicant from testifying on his own behalf and failed to explain to the applicant that he could take the witness stand and tell his side of the story, this Court held that the applicant was denied a fair hearing. The applicant was unable to present evidence to support his case.
[32] In Castroman, the issue was whether the RPD denied the applicant a fair hearing when it denied him the opportunity to be represented by counsel at the continuation of his oral hearing. There, during the course of the hearing and following a dispute with the RPD about a line of cross-examination questioning, the applicant’s counsel inappropriately withdrew from the case. However, the RPD did not ask the applicant if he was prepared to continue without counsel, it did not offer to adjourn so that he could seek new counsel, and it instead permitted the applicant’s cross-examination to continue. The RPD also misled the applicant into thinking he had no right of re-examination. In those circumstances, the Court held that the applicant had been denied a fair hearing by the RPD.
[33] In Olifant, which the Court noted was a “unique case […] with unusual circumstances”
(at para 15), the Court found that it was procedurally unfair for the RPD not to have taken at least some positive steps to ensure that the applicant understood what it meant if his claim was found to have “no credible basis”
and the implications of such a finding, which were things that the applicant would not necessarily have known.
[34] In Nemeth, the applicants dismissed their counsel at the last moment prior to a hearing before the Immigration and Refugee Board [IRB]. New counsel requested an adjournment. The Court concluded that the failure to adjourn to accommodate new counsel’s schedule did not deny the applicants the right to be represented by counsel. However, it also noted that, had the applicants been abandoned by counsel at the last minute and an adjournment was refused, then the right to counsel would be effectively breached (at para 6). The Court went on to consider whether the applicants had received a fair hearing, stating:
[10] The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings
, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded.
[35] The Court in Nemeth then considered the IRB’s interactions with the applicants during the course of the hearing. It found that in each of those interactions, while the assistance of counsel could have been useful, in itself that did not mean that the applicants did not receive a fair hearing. However, what was of concern to the Court was that the IRB had not responded to the applicants’ written request for an adjournment. While the applicants could have also requested an adjournment at the hearing, the Court held that the IRB should have, at least, inquired further into the matter of representation given that: (i) it was clearly aware that counsel of record had recently left the case; (ii) determination of a refugee claim is a serious matter; (iii) the matter involved an issue of legal interpretation and, although the IRB made some effort to explain it, the applicants were not in a position to address it; and (iv) it was clear that the applicants were ill-prepared for the hearing as evidenced by, for example, their failure to bring with them relevant documentation. The Court concluded that the IRB should have realized that the applicants were prejudiced in their ability to present their claims by the absence of a representative, particularly as the hearing unfolded. Further, that this was not a situation in which the applicants had made the decision to prosecute their claims without assistance and did so carelessly.
[36] In Kerqeli, when the RPD heard the applicant’s refugee claim, the applicant was not represented by counsel. On judicial review, it was argued that because of what the RPD said at the hearing, the applicant did not understand that he was entitled to make final submissions at the end of the hearing’s evidentiary phase. The Court noted that the applicant had filed an affidavit (which he was not cross-examined on) attesting to his understanding of the process and, in particular, his understanding that he could not make submissions or argument. The Court accepted this evidence as it was consistent with the transcript and with the applicant’s reactions to the RPD. The Court held that:
[13] Self-represented litigants raise special challenges to courts and tribunals, in part because of lack of familiarity with the adjudicative process in this country. It is not the obligation of courts or tribunals to provide mini courses on law and procedure but it is their obligation to ensure that the legal process is fair. This was referred to by Justice Barnes in Kamtasingh v Canada (Citizenship and Immigration), 2010 FC 45, 87 Imm LR (3d) 118, at para 10:
… In a situation involving an unrepresented party, the scope of the duty of fairness is different and I subscribe to the views expressed by my colleague, Justice Danièle Tremblay-Lamer in Law v. Canada (Minister of Citizenship and Immigration) (2007), 2007 FC 1006, 160 A.C.W.S. (3d) 879 at paras. 15-19:
15 Thus, the IAD is to be shown much deference in its choice of procedure so long as that procedural choice permits those who are affected by its decision to present their case.
16 Specifically, in the context of the procedural rights afforded to a self represented party, this Court has held that an administrative tribunal has no obligation to act as the attorney for a claimant who refused counsel, and that:
[…] it is not the obligation of the Board to “teach” the Applicant the law on a particular matter involving his or her claim. (Ngyuen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17)
17 However, while administrative tribunals are not required to act as counsel for unrepresented parties, they must still ensure that a fair hearing takes place. In Nemeth v. Canada (Minister of Citizenship and Immigration), 2003 FCT 590, [2003] F.C.J. No. 776 (QL), at para. 13, O’Reilly J. asserted:
[…] But the Board’s freedom to proceed in the absence of counsel obviously does not absolve it of the over-arching obligation to ensure a fair hearing. Indeed, the Board’s obligations in situations where claimants are without legal representation may actually be more onerous because it cannot rely on counsel to protect their interests.
18 It has also been recognized that an unrepresented party “[…] is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants […]” (Soares v. Canada (Minister of Citizenship and Immigration), 2007 FC 190, [2007] F.C.J. No. 254 (QL), at para. 22).
19 Therefore, it is evident that the specific content of procedural rights afforded to unrepresented parties is context-dependent. The paramount concern is ensuring a fair hearing where the unrepresented party will have the opportunity to fully present their case.
[14] People who, for one reason or another, represent themselves engage in a highly risk enterprise – the equivalent of doing open heart surgery on oneself. There are limits on how far a court or tribunal can go but it seems to me that the basic process – the hearing of evidence, the sequence of evidence and cross-examination and the conduct and timing of argument – are bare minimums, which must be explained.
[37] Upon review of the interactions at the hearing, the Court in Kerqeli concluded that the applicant had not understood the process and held that unintended circumstances led to the process being “undermined by unfairness”
(para 18). Ultimately, it concluded that there had been a breach of procedural fairness.
[38] In my view, it is noteworthy that all of these cases involved a hearing at first instance. The procedural concerns were connected to the actual conduct and fairness of the hearing conducted before the RPD – such as the ability to give evidence, make submissions and whether the litigants understood concepts significant to their case. This differs from the context of the RAD process, which, with certain exceptions, must proceed without a hearing on the basis of the record that was before the RPD (IRPA, ss 110(3), (4) and (6)). Thus, given that there was no hearing before the RAD in this case, the issue of the conduct of the hearing and whether the Applicant understood the hearing process does not arise.
[39] However, the Applicant’s submissions to the RAD requesting an extension of time indicate that he had intended to, and thought he had, retained counsel who withdrew after the time for filing a Notice of Appeal had passed. He was under the impression, given the lapsed deadline, that he had no further time to find and instruct new counsel and, therefore, filed the Notice of Appeal and his appeal record himself. It is arguable that it should have been apparent to the RAD that the Applicant had intended to retain counsel, and that his understanding of the process was that time did not permit him to do so if he was to preserve his right to appeal. And, therefore, that the RAD should have alerted him to the possibility of seeking an extension of time to retain and instruct new counsel.
[40] However, at this pre-determination stage of the RAD process, the Applicant did not request an extension of time to retain and instruct new counsel. Nor did he contact the RAD seeking an accommodation to permit him to retain and instruct new counsel during the two months between when he sought the extension of time and the RAD issuing its decision. Moreover, by his filing, the Applicant himself had already perfected his appeal. At that stage, the RAD would not only have had to inform the Applicant that he could request an extension of time to retain and instruct new counsel, but it would also have had to advise the Applicant that his new counsel could seek to withdraw the existing submissions and file replacement submissions, or to amend or supplement the already perfected appeal.
[41] Further, and significantly, unlike Kerqeli, the Applicant in this matter has not provided any affidavit evidence in support of his allegation that he was denied procedural fairness. As a result, there is no evidence confirming the allegations that: he misunderstood the appeal process; that he did not appreciate that it was still a possibility that he could – and that he would have – retained and instructed new counsel to represent him (and who would have tried to submit a further or revised appeal record); or that as a result of his lack of counsel, he was unable to meaningfully participate in his appeal. These assertions are based solely on the arguments made by counsel.
[42] In that regard, the record indicates that the Applicant had some appreciation of the appeal process. For example, in his explanation in the EOT Application, he indicated that he was aware that he had 15 days to submit his Notice of Appeal. He also submitted the completed RAD form “Written Statement Concerning the Hearing at the RAD”
pursuant to Rule 3 of the Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules]. This included justification for any proposed new evidence that he wished to submit, the grounds of appeal, and a memorandum describing the basis of his appeal.
[43] As to the case to be met, in this memorandum, the Applicant identified the grounds of his appeal, being: various errors of fact; concerns with the RPD findings that were non-determinative or in his favour (e.g., that he was not excluded under s 98 of the IRPA and Article 1F of the Convention); and, his view that his evidence supported that he had been personally targeted by his agents of persecution, which furthered his claim under s 97(1) that his life would be at risk if he returned to Nigeria. The grounds do not specifically challenge the availability of an IFA. However, the Applicant knew that the RPD’s finding of Port Harcourt as an IFA was the determinative issue for the rejection of his claim. This is demonstrated in his explanation for adducing new evidence before the RAD, in which the Applicant acknowledged that the “Panels reason for rejection was on the basis of Internal Flight Alternative”
. He then provided submissions as to why his new evidence would refute that determinative point, although this evidence was ultimately deemed inadmissible.
[44] In sum, in these particular circumstances, I am not persuaded that he RAD breached the duty of procedural fairness owed to the Applicant. The Applicant perfected his appeal and did not, at any point, inquire if accommodation could be made to allow him to retain and instruct counsel and make further or substitute submissions. The record also demonstrates that the Applicant has at least some understanding of the appeal process and was aware of the determinative issue in his case. And, most significantly, the Applicant provided no affidavit evidence to support his allegations that he did not understand the RAD process and that he was not able to fully participate in the appeal because he did not know that there was a possibility of subsequently retaining counsel. While legal counsel would have been of assistance, overall, the Applicant received a “fair hearing”
in the context of the RAD process.
The RAD’s Decision Was Unreasonable
Applicant’s position
[45] The Applicant makes a number of submissions as to the reasonableness of the decision.
[46] He asserts that the decision is unreasonable because it does not mention or decide the request for an extension of time. Further, the RAD’s failure to mention that the Applicant was self-represented against his will and to engage with his arguments and evidence on this point is also unreasonable because that formed a “central aspect of the case that was before the RAD”
. The RAD’s failure to mention the Applicant’s circumstances as being self-represented against his will “indicates that the RAD was not listening to the Applicant”
.
[47] Although acknowledging that the RAD is to apply the correctness standard, the Applicant submits that the RAD seemingly applied a reasonableness standard and provided little to no explanation for why it believed the RPD’s decision was correct. The RAD is required to carefully consider the RPD’s decision and then conduct its own independent review of the record to determine whether the RPD erred (citing Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103 [Huruglica]). The Applicant submits that the RAD erred, as the reasons are not transparent or justified as they relate to key findings and that its lack of justification can be found in several instances. For example, the RAD erroneously showed deference to the RPD’s use and application of the IFA analysis and failed to conduct an independent analysis.
[48] Additionally, the RAD’s statement that the Applicant does not challenge the determinative findings regarding whether he could safely live in Port Harcourt is directly contradicted by materials in the RAD record. Specifically, the Applicant’s request to submit new evidence intended to demonstrate that Port Harcourt was not a viable IFA. While this new evidence was not admitted, the Applicant’s submissions on this point clearly indicate that the Applicant challenged the RPD’s IFA finding. As such, the RAD’s conclusion that the Applicant did not challenge the determinative finding regarding whether he could safely live in Port Harcourt is illogical, unreasonable, and indicates that his central arguments were not listened to.
[49] The Applicant also argues that the RAD’s statement that the Applicant can reasonably and safely live in Port Harcourt is unsupported by an evidentiary basis. The RAD does not explain the reasoning for arriving at this finding, nor does it explain why the RPD’s decision was correct. Further, the RAD failed to analyze the Applicant’s testimonial evidence, which contradicts the RAD’s conclusion that the Applicant could live safely in Port Harcourt (citing Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 52 at para 17 [Cepeda-Gutierrez]. The Applicant refers to excerpts of his testimony, where he repeatedly explains that the Aiye are “everywhere in Nigeria”
. While the RAD states that it read the transcript, the Applicant asserts that there is “no indication”
that it meaningfully considered it – including the Applicant’s discussion about the unavailability of an IFA in Port Harcourt – and that this failure is determinative.
Respondent’s position
[50] The Respondent submits that the Applicant has not shown any error with the RAD’s finding that an IFA is available in Port Harcourt. The onus is on the Applicant to show, on a balance of probabilities, that they would be subjected to the types of harms that would make them persons in need of protection in the entire country, and specifically in the potential IFA areas. The threshold is high to find an IFA unreasonable, requiring that an applicant provide “actual and concrete evidence”
of conditions that would jeopardize their life and safety in travelling, or temporarily relocating, to that area (citing Rasaratnam v Canada (Minister of Employment and Immigration) (CA), [1992] 1 FC 706 [Rasaratnam]; Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at paras 7–8 [Olusola], amongst others).
[51] Here, the RAD agreed with the RPD’s conclusion that an IFA exists and found that, despite the RPD’s factual errors, those errors did not affect the RPD’s conclusion. Accordingly, there is no merit to the argument that the RAD failed to consider this issue independently.
[52] Further, the RAD noted that it read the transcript, listened to a recording of the RPD hearing, and assessed all evidence in the record. Despite the Applicant’s testimony in the transcript expressing his view that gang members are “everywhere”
in Nigeria and that the RAD erred in not specifically referencing this testimony, the RAD determined that the country information outweighed the Applicant’s subjective fear. Ultimately, the RAD agreed with the RPD’s assessment that the country information did not support the Applicant’s view that the gang could locate him anywhere. The Respondent submits that the RAD did not ignore the Applicant’s testimony. Rather, the Applicant is asking the Court to give more weight to his view.
[53] The RAD also noted that the RPD considered the Applicant’s evidence against the jurisprudence, his personal circumstances, and the country information. And, that the Applicant had not challenged any of the RPD’s determinative findings. While the Applicant asserts that he made submissions about the availability of Port Harcourt as an IFA, these submissions were made in the context of the Applicant’s request to submit new evidence at the RAD. While, in those submissions, the Applicant disagrees with the RPD’s conclusions on an IFA, the context of providing submissions with regards to new evidence is different from specifically demonstrating how the RPD erred in its finding. What the Applicant argued before the RAD was that the RPD had failed to consider the support letters from his friends, which the RAD addressed and concluded that they were not relevant to the IFA issue. The RAD noted that the Applicant did not otherwise challenge the RPD finding that the Applicant could safely relocate to Port Harcourt and had not demonstrated any error in that regard. Jurisprudence of this Court holds that applicants who fail to specify alleged errors by the RPD do so at their own peril, and the RAD Rules set out applicants’ obligations in identifying alleged errors in the application record materials.
[54] The Respondent also submits that an application for judicial review is not simply a second chance or an opportunity for new counsel to reshape the case (citing Grillo v MPSEP, 2021 FC 343 at para 2, among others).
[55] As to the Applicant’s submission that the RAD’s decision does not reference the information he submitted about his dealings with his prior lawyer, given that this information was provided to the RAD to justify why the Applicant was requesting an extension of time, and given that RAD granted the extension, it is unclear what more the Applicant expects the RAD to have done with this information. The Applicant’s submissions about his former lawyer did not relate to his submissions about the merits of the appeal – they related only to his request for an extension of time to file the Notice of Appeal. Further, the Applicant had not requested an extension of time to seek a new lawyer, but to file the Notice of Appeal, and asked the RAD to accept the appeal documents, which he had decided to prepare on his own.
Analysis
[56] Before the RPD, the onus was on the Applicant to show, on a balance of probabilities, that he would be subjected to the types of harms that would make him a person in need of protection in the entire country of Nigeria and, specifically, in the potential IFA (Rasaratnam; Olusola, at paras 7–8).
[57] Upon review of the RPD decision, the RAD must apply the correctness standard (Huruglica, at para 78). This means that, while it is not a de novo appeal, the RAD must still conduct its own analysis to determine whether it ought to intervene (Huruglica, at paras 79, 103). The RAD does not owe deference to a RPD decision, but for the exceptional instance (which is not at issue here) where it is recognized that the RPD had a meaningful advantage with respect to assessing the credibility of viva voce evidence (Huruglica, at para 70). The fact that the RAD agrees with the conclusions of the RPD does not necessarily mean that it failed to conduct an independent analysis (see e.g., Ademi v Canada (Citizenship and Immigration), 2021 FC 366 at para 28).
[58] However, something more than mere agreement is needed. The RAD, having undertaken its own analysis, must express and explain its findings, even if it does so briefly, in order to demonstrate where it landed on the issues raised in the appeal (see e.g., Gomes v Canada (Citizenship and Immigration), 2020 FC 506 at para 52 [Gomes]). This not only allows the parties to understand the RAD’s decision but also enables this Court, upon judicial review, to determine what evidence the RAD itself found persuasive and trace the path of its reasoning.
[59] That said, the Applicant’s arguments that the RAD erred by failing to mention or decide the request for an extension of time, to mention that the Applicant was self-represented “against his will”
, and to engage with his arguments and evidence on this point which was a central aspect of the case before the RAD, are without merit. As discussed above, the RAD issued a discrete decision granting the extension of time. The Applicant’s submissions about his prior counsel were made entirely in that context. His submissions before the RAD as to alleged errors by the RPD were not concerned with a lack of representation by counsel at the RAD.
[60] However, I agree with the Applicant that the RAD’s reasons do not demonstrate that it undertook an independent review of the record. I also agree that the RAD’s reasons do not explain how it determined that the RPD was correct and why it agreed with the RPD.
[61] The RAD found that the determinative issue was the IFA in Port Harcourt.
[62] In his written submissions to the RAD, the Applicant alleged that the RPD failed to consider his support letters. However, the RAD found that the letters were not relevant to the IFA because they did not indicate that the agents of persecution were in Port Harcourt; they were only in the Applicant’s old neighbourhood in Lagos. The RAD stated that the Applicant failed to provide other submissions challenging the RPD’s findings that Port Harcourt was a viable IFA.
[63] The RAD found that the RPD had come to the correct conclusion with respect to the IFA determination. The RAD’s rationale and conclusions were as follows:
[44] The Refugee Protection Division considered the Appellant’s evidence with the lead jurisprudence [citing Rasaratnam v Canada (Minister of Employment and Immigration) (CA), 1991 CanLII 13517 (FCA), [1992] 1 FC 706] with his personal circumstances, and the country information as required.
[45] The Appellant does not challenge these determinative findings.
[46] Subjective fear, as the Appellant states he has, is not a requirement to consider. The country information outweighed his subjective fear.
[47] Appellants have the responsibility to demonstrate how the Refugee Protection Division erred. I do not see any independent err.
[48] The Appellant has not demonstrated the Refugee Protection Division’s determinative issue is incorrect.
[49] Therefore, I have nothing further to consider.
[50] The Refugee Protection Division stands correct.
[51] The Appellant is able to reasonably and safety live in Port Harcourt as per Canadian law.
[64] I acknowledge that the actual grounds of appeal relied upon by the Applicant did not explicitly challenge the IFA. However, read in whole, the Applicant did submit that he would be subjected to the types of harms that would make him a person in need of protection in the entire country under s 97(1) of the IRPA, which, as the RPD acknowledged (at para 29) is encompassed by the first branch of the IFA test. And, as the RAD knew, the Applicant was self-represented. Thus, the RAD should have considered his submissions in that light. I also find it difficult to reconcile the RAD’s finding, on one hand, that the Applicant did not challenge the IFA findings while, on the other hand, finding that the country conditions outweighed his subjective fear. If it is assumed that by this the RAD means, in its view, that the country conditions documentation did not support the Applicant’s position that he would be at risk in Port Harcourt, this suggests that the RAD accepted that the Applicant had raised IFA in his appeal beyond the issue of his support letters. In any event, the reasoning on this point lacks transparency.
[65] In my view, the RAD did not clearly indicate either that: it determined that the appeal grounds did not cover the IFA and, on that basis, it was declining to consider same; or, that it had conducted an independent assessment and, based on same, found that the RPD’s IFA finding was correct.
[66] On the latter point, the RAD’s reasons do not enable the Court to “determine what evidence the RAD itself found persuasive and trace the path of its reasoning”
(Allen v Canada (Citizenship and Immigration), 2015 FC 994 at para 18), nor does it transparently delineate the “chain of analysis that led to the determination”
(Gomes, at para 52). For example, paragraph 44 of the RAD’s decision merely reiterates the RPD’s analytical process. And, although the RPD found that an IFA was the determinative issue, at paragraph 45 of its reasons the RAD states that the Applicant did not challenge “these determinative findings”
without identifying what these might be. In other words, paragraph 45 is unintelligible. Further, with regard to paragraph 46, I agree with the Applicant that the RAD’s reference to “country information”
outweighing the Applicant’s subjective fear, without further specification or elaboration, amounts to opaque reasoning.
[67] Overall, the RAD’s reasons recite the RPD’s findings, are brief without any detail, and lack transparency. The RAD did not assess either the country conditions, nor did it explain why it agreed with the RPD’s assessment and why it rejected the Applicant’s contradictory evidence.
[68] On this point, I note that the RPD found that the Aiye gang did not have the means or motivation to find the Applicant in Port Harcourt. In reaching that conclusion, the RPD states that the Applicant admitted to having limited knowledge of specific gangs in Nigeria but believed that the Aiye could find him wherever he is. When asked how the Aiye could track him anywhere in Nigeria, he replied that he did not know. The RPD acknowledged that the Applicant may not know his agents of persecution’s capacity to locate this and, therefore, turned to the objective evidence and examined the country condition evidence submitted by the Applicant. The RPD found that this evidence did not support that the Aiye gang would have the capacity to find the Applicant in Port Harcourt.
[69] While the RAD, upon considering the Applicant’s testimony and the objective evidence, may well have reached the same conclusion, the RAD alludes to but does not engage with the objective evidence, nor does it engage with the Applicant’s testimony. Its reasons do not demonstrate that the RAD conducted an independent analysis to support its conclusion that Port Harcourt was a viable IFA for the Applicant. This is a reviewable error (Jeyaseelan v Canada (Citizenship and Immigration), 2017 FC 278 at para 21; Khachatourian v Canada (Citizenship and Immigration), 2015 FC 182 at para 33; Denis v Canada (Citizenship and Immigration), 2018 FC 1182 at para 39).
[70] Accordingly, the RAD’s decision is unreasonable and must be remitted back to the RAD for redetermination.
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