TB8-03415

RAD File / Dossier de la SAR : TB8-03415 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 6, 2019 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are) the subject of the appeal Nkunda I Kabateraine Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the Appellant) is a citizen of China. The Appellant appeals the Refugee Protection Division (RPD) decision of October 27, 2017, that he is not a Convention Refugee nor person who has a serious possibility of persecution or risk to life, a risk of cruel and unusual treatment or punishment, or danger of torture should he return to China. [2] The Appellant submits that the Refugee Appeal Division (RAD) should find him to be a Convention refugee or a person in need of protection. Alternatively, this matter should be referred back for re-determination by a differently constituted panel. DETERMINATION [3] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers to matter back to the RPD for re-determination. Memorandum of Appeal [4] Did the RPD err in failing to assess the Appellant's Sur Place claim? [5] Did the Tribunal err in basing its decision on mere speculation or conjecture? Background [6] Because the Appellant was suffering from insomnia, he sought medical support. This support was not beneficial, and he accepted the ministrations of a friend regarding the practice of Falun Gong. He began the practice in December 2015 and on October 29, 2016, he participated in an underground Falun Gong practice group. [7] His practice of Falun Gong resulted in an improvement of his insomnia. His family members were concerned that his practice of Falun Gong could cause him to be punished by the authorities in China. Because of this, the Appellant left China and came to Canada. He began his practice of Falun Gong on the day he arrived in Canada. [8] The RPD hearing was held on December 6, 2017, and in a decision of December 11, 2017, the RPD found that the Appellant was neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [9] The Appellant supported the provisions outlined in the decision of the Federal Court of Appeal (FCA) in Huruglica,1 which provide guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of the first-level administrative tribunal. [10] The FCA stated that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to paragraph 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD's decision without hearing the evidence presented before the RPD. For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica. In assessing issues involving credibility of oral testimony, I have applied the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making a particular finding, as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). It further indicates that, although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [11] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. MERITS OF THE APPEAL Sur Place [12] The RPD made no probative findings on the issue of Sur Place in this claim. [13] The Appellant submits that the RPD did not assess his activities referred to in paragraphs 14-16 in order to determine whether he was a genuine Falun Gong practitioner in Canada. The Appellant quoted Federal jurisprudence2 to support his submission that a failure to consider a ground of persecution in a Sur Place claim is an error of law. [14] The Appellant also considered the federal jurisprudence in Chen3 in submitting that the RPD erred by concluding that he did not genuinely come to Canada to practice Falun Gong because he did not believe the evidence regarding events that allegedly participated his departure from China. He further submits that the negative credibility findings relied upon by the RPD cannot stand because they were all based on mere speculation or conjecture. The Appellant outlined its reasoning in rejecting the RPD's findings as speculative. [15] The RAD finds that, at the bottom of paragraph 14,4 the RPD found that he was not a genuine Falun Gong practitioner and would not be perceived in China as a Falun Gong practitioner. This decision was made in spite of the RPD statement in the same paragraph, that he spoke thoroughly and knowledgeably about Falun Gong and why it was important to his life. The RPD based this finding on overwhelming adverse evidence. The evidence that the RPD used to find that he was not a genuine Falun Gong practitioner was related to his reasons for practicing Falun Gong and his removing himself from his family and business in an extraordinarily quick fashion. The RAD finds that this speculative reasoning is insufficient to undermine RPD's findings that the Appellant had a thorough and knowledgeable understanding of Falun Gong. [16] The RAD finds that the RPD had to provide some probative reasons for rejecting the Appellant's Sur Place claim. The RAD is unable to hold a hearing in that no new evidence has been disclosed. The RAD also finds that the RPD erred by not considering the Appellant's Falun Gong activities in Canada and reviewing these activities as a basis of determining whether he could return safely to China. Falun Gong [17] Some notes regarding the RPD's finding that the Appellant was knowledgeable and spoke thoroughly about the practice of Falun Gong: in reviewing the RPD hearing, the RPD questioned the Appellant about four exercises and made only one exploration into the philosophy of Falun Gong as outlined by Master Li. The RAD finds that this is insufficient to make a determination that he spoke thoroughly and knowledgeably about Falun Gong. The RAD also notes that the Appellant was not wanted by the authorities when he left China. DISPOSITION [18] The RAD upholds the appeal and refers the matter back to the RPD for re-determination according to paragraph 111(1)(c) of the IRPA. (signed) "Robert S. Garner" Robert S. Garner March 6, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2Koua, Marcellin v. M.C.I. (F.C., no. IMM-3641-14), Diner, June 24, 2015, 2015 FC 793; Gebremichael v. M.C.I., 2006 FC 547; Manzila, Nicolas v. M.C.I. (F.C.T.D., no. IMM-4757-97), Hugessen, September 22, 1998; [1998] SCJ number 1374 (QL); 165 FDR 313 at paragraph 4 3 Chen v. M.C.I., 2014 FC 749. 4 Exhibit RPD-1, RPD Record, p.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03415 RAD.25.02 (September 18, 2018) Disponible en français 5 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.25.02 (September 18, 2018) Disponible en français