TB4-06995

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-06995 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 18, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister T. LUCAS Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration (the Appellant) appeals a decision of the Refugee Protection Division (RPD) granting XXXX XXXX XXXX (the Respondent), refugee protection. The Minister has not submitted new evidence and has not requested an oral hearing. The Minister requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and remit the matter for re-determination by a differently-constituted RPD panel DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD dismisses the appeal and confirms the decision of the RPD that the Respondent is a Convention refugee. Background [3] The Respondent alleged in her Basis of Claim (BOC) narrative that she attended an underground Roman Catholic church on XXXX XXXX, 2012, and continued to attend services until XXXX XXXX, 2014, when the church was raided by the Public Security Bureau (PSB). She escaped and went into hiding and the next day the PSB went to her home to arrest her, and left a summons with her mother-in-law. A priest found a smuggler for her who arranged her exit from China and provided her with a false passport. The PSB continue to pursue her. Port of Entry Notes [4] Counsel, in the RPD hearing, submitted that portions of the immigration officer's interview notes at the Port of Entry (POE) should not be entered into evidence given the Federal Court's decision in Samarakkodige. The panel indicated in its reasons that it had "considered the higher court's direction in this matter" and concurred with counsel's submissions that the immigration officer had delved into areas during the interview not related to the determination of the inadmissibility or ineligibility of the claimant. The panel therefore struck from the record a portion of the POE interview notes. [5] The Minister, in the Appellant's Memorandum of Argument, submits that the RPD panel committed an error of law when it founded its decision to strike a portion of the POE interview notes on the basis of Federal Court jurisprudence. [6] The Minister's Statement indicates a copy of the full POE notes provided to the RPD before the hearing has been disclosed, and further submits that the full notes remain part of the record even though a portion of these notes was struck from the record by the panel in the RPD hearing. The Minister submits the panel's decision to strike these notes from the record is "the key matter at issue in the Minister's appeal." [7] The Minister has not identified the notes as evidence per subsection 110(3) of the IRPA. The Minister submits however, if the RAD considers the notes as documentary evidence per subsection 110(3) of IRPA, the relevance of the evidence is addressed in the Appellant's Memorandum of Argument. The Issue [8] The Appellant and the Respondent agree that the panel's decision to strike a portion of the POE notes from the record is the determinative issue in this appeal. Role of the RAD [9] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellant tribunal's role in relation to that of the RPD. [11] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Respondent's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [12] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [13] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. The Appellant's Submissions [14] The Minister submits that the panel, referring to Samarakkodige, indicated it gave consideration to "the higher court's direction in this matter," and further indicated it agreed with counsel in the RPD hearing that the POE interviewer examined matters unrelated to the "determination of inadmissibility or ineligibility" of the Respondent. As a result the panel struck from the record the portion of the POE notes that did not pertain to the Respondent's eligibility to make a refugee claim, or her admissibility to Canada. [15] The Minister submits the panel did not properly justify her decision, in that Samarakkodige does not provide such legal authority for the panel's action. [16] The Minister further submits that the Court in Samarakkodige was concerned with the question of whether the claimant had omitted mention of a key incident in his POE interview and the Court found there was no such omission and the panel's credibility concern was not sustainable. [17] The Minister also submits the Court cited a section of the then current policy manual before stating its view that "the information found in the immigration officer's notes would not likely contain all the details of the principal applicant's claim." [18] The Minister argues that it is this section of Samarakkodige that the panel has misconstrued in justifying the decision to strike a portion of the POE notes. The Minister notes the Court referred to the text of the policy manual concerning admissibility and eligibility to contextualize its view that one should not necessarily expect all details of a claim to be presented in the POE interview. The Minister further notes that there is "no judicial direction or indication in Samarakkodige that answers or statements given to an officer should be excluded from the record if they do not strictly pertain to matters of admissibility or eligibility." [19] The Minister also submits that the panel committed factual errors as some of the excluded information could reasonably concern matters of admissibility or eligibility. In this regard the Minister notes the Respondent was asked in the portion of the POE interview that was struck from the record whether she had committed any crimes in China for which she was wanted, and who and what she feared in China and why she was wanted. The Minister notes that such factual errors may not be determinative in the case at bar, but submits they "underline the danger of the haphazard approach taken by the panel in excluding portions of the POE notes...." [20] The Minister acknowledges that case law underlines why a panel should exercise care concerning how this information is used in adjudicating a claim for protection. The Minister notes however, that jurisprudence has also established "that declarations to immigration authorities at the POE may be considered by the Board in order to evaluate a claimant's credibility."2 [21] The Minister submits as well that in the case at bar, the excluded portion included information that went to the heart of the Respondent's claim, her identity as a Catholic. In this regard the Minister notes the excluded information provided evidence that the Respondent did not know when Jesus was born and she did not know the name of the current Pope. [22] The Minister acknowledges that the outcome of an examination of the excluded material is uncertain; but that this excluded information raises apparent credibility concerns and there should have been an opportunity to examine it. The Respondent's Submissions [23] The Respondent submits that the RPD panel found the Respondent to be a credible witness as to her identity as a Roman Catholic. [24] The Respondent further submits that the panel's decision to exclude some POE notes was "proper and reasonable." The Respondent notes in this regard that the Court in Samarakkodige "quoted with approval" the portion of the manual which states "the officer should not ask the claimant to elaborate on the basis of the claim unless the information relates to admissibility and eligibility." [25] The Respondent submits that "the vast majority of the portions of the notes that were excluded go to the merits of the claim. [26] The Respondent further submits that with respect to "those small portions of the notes that went to the issue of admissibility and eligibility, such as whether the Respondent had ever been convicted of any crimes, there is no evidence that the Appellant has presented to suggest that the Respondent is inadmissible." [27] The Respondent argues that in this context, remitting the matter to the RPD would serve no purpose as there is no evidence that the Respondent is inadmissible or ineligible. [28] The Respondent submits that in finding her evidence as to her identity as a Roman Catholic to be credible, the panel "had the advantage of seeing and hearing the witness and the RAD ought not to interfere with these credibility findings." The Respondent cited in this regard the Federal Court decision in Huruglica.3 [29] The Respondent submits that given the RPD panel's very positive strong credibility finding concerning her Roman Catholic identity, it is unlikely that the outcome would have been different had the notes not been excluded. Analysis and Decision [30] The RAD has reviewed and assessed all of the evidence in the RPD record, the Appellant's submissions, the Respondent's submissions, and the case law at the core of the issue in this case. [31] The RAD agrees with the Appellant that the panel misconstrued the Court's decision in Samarakkodige and that there is "no judicial direction or indication in Samarakkodige that answers or statements given to an immigration officer should be excluded from the record if they do not strictly pertain to matters of admissibility or eligibility." [32] The RAD finds that the panel committed an error in law when it founded its decision to strike a portion of the POE interview notes on the basis of Federal Court jurisprudence. [33] The RAD notes that POE evidence is part of the RPD record and available to be weighed by an RPD panel. In this regard the RAD cites the Federal Court decision in Navaratnam4 in which the Court cited the Court in Mongu5 that "it is trite law that statements to immigration authorities at the POE may be considered by the Board in order to evaluate a claimant's credibility and that a person's first story is usually the most genuine, and therefore the one to be believed." [34] While an error in law is generally a basis for remitting an appeal to the RPD for re-determination, in this case the RAD finds that it must consider the impact of the panel's decision to strike a portion of the POE notes on its determination of the claim. [35] The Appellant also submitted that the panel committed factual errors in that there was information in the excluded material that did concern matters of admissibility or eligibility. [36] The RAD has reviewed this material and agrees with the Respondent that there is no evidence presented by the Appellant to suggest that the Respondent is inadmissible. [37] The Appellant submits as well that the excluded material included evidence that the Respondent did not know, such as, when Jesus was born or the name of the current Pope. The Appellant argues that this information goes to the heart of the case, that is, the Respondent's identity as a Roman Catholic. [38] The RAD agrees with the Respondent that given the panel's very positive credibility finding regarding the Respondent's Roman Catholic identity, and the panel's advantage of seeing and hearing the witness, the RAD should give deference to the panel's decision in this regard. [39] The RAD finds that the Respondent's inability to answer the two questions noted above is insufficient evidence to challenge the panel's decision regarding the Respondent's Roman Catholic identity. [40] In the context of the RAD's assessment of all of the evidence in this appeal and as well the RAD's findings noted above, the RAD further finds that while the panel did make an error in law, the inclusion of the POE material not considered by the panel would have made no material impact on the panel's determination of this claim. Disposition [41] For these reasons and pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the appeal is dismissed and the RAD confirms the decision of the RPD that the Respondent is a Convention refugee. (signed) "Milton Israel" Milton Israel November 18, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Navaratnam, Gunaratnam v. M.C.I. (F.C., no. IMM-6744-10), Shore, July 12, 2011, 2011 FC 856. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Navaratnam, Gunaratnam v. M.C.I. (F.C., no. IMM-6744-10), Shore, July 12, 2011, 2011 FC 856. 5 Mongu v. MCI (1994), 86 FTR 59, 52 ACWS (3rd) 391 (TD). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06995