TB4-02151

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 : TB4-02151 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, Ontario Appel instruit à Date of decision June 12, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ann Crawford 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 N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and that either the Appellant be found to be a Convention refugee, or, that the matter be referred back to the RPD for re-determination by a differently- constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention reffugee nor a person in need of protection. The Appeal is dismissed. BACKGROUND [3] The Appellant alleges he is being pursued by the Public Security Bureau (PSB) for having harboured two North Koreans in his home in China. These Koreans came to his home on XXXX XXXX XXXX 2013, and left on XXXX XXXX XXXX 2013. On XXXX XXXX, 2013, the PSB came to his home when he was not present. After he received this information, he and his mother went into hiding. [4] The person who brought the North Koreans to his home was subsequently caught along with the two North Koreans. [5] The Appellant's aunt was questioned; she brought the PSB to the Appellant's home; and the PSB left a summons. With the help of a smuggler, the Appellant left China. [6] In an amendment to his Basis of Claim narrative (BOC), the Appellant indicated the PSB had come to his home five times. He is unable to disclose the summons because his aunt could not find it and she fears asking the PSB for a copy. THE ISSUES [7] The issues identified by the Appellant are the following: * Whether the RPD relied on microscopic or trivial inconsistencies to support negative credibility findings and a negative determination of the claim; * Whether the Appellant was denied procedural fairness as the result of interpreter problems in the first sitting of the hearing. [8] The RPD indicated that the determinative issue in this case was credibility. ANALYSIS Standard of Review [9] The Appellant makes no submission in regard to the standard of review. The RAD finds the issues of concern are fact in regard to the credibility of the Appellant, and law concerning the interpreter problem. The RAD further finds, for the reasons set out below, the standard of review concerning issues of fact is reasonableness, and the standard of review concerning issues of law is correctness. [10] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [11] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [12] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [13] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [14] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [15] The nature of the question in issue: This appeal raises a question of law and fact. Questions of law have generally been reviewed in a correctness standard in the appellate court context.6 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.7 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [16] This appeal also raises questions of fact and of law, and such questions, in both appellate court and judicial review contexts, have attracted a deferential standard of review.8 [17] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [18] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.9 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [19] In the context of an appeal to RAD, this objective can be understood as ensuring that Appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [20] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [21] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [22] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,10 and each can take notice of information and opinion within its specialized knowledge.11 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,12 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.13 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,14 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. In the RAD's view, the RPD does not have the same advantage on questions of law. [23] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.15 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [24] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. Among the questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.16 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [25] For these reasons, the RAD concludes that, in considering this appeal in regard to questions of fact, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.17 The appropriate standard of review in this appeal in regard to findings of fact and mixed law and fact is reasonableness. [26] In regard to questions of law, it is an appropriate function for the RAD to ensure that the RPD is applying the correct law. This approach promotes just decisions and avoids inconsistent application of the law.18 A correctness standard on questions of law ensures universality in the application of the law.19 Whether the RPD relied upon microscopic or trivial inconsistencies in making credibility findings [27] The RPD noted seven inconsistent responses or omissions as the basis for negative credibility findings and subsequently a negative determination of the claim. a. The Appellant testified his aunt was called by the PSB to come to the claimant's home, while in his Basis of Claim narrative (BOC) he indicated his aunt brought the PSB to his home. b. The Appellant testified that his aunt told him the PSB left a summons, while the BOC narrative does not state a summons was left but that he was wanted for investigation. c. The Appellant testified that his friend and the two North Koreans were arrested but this was not noted in the BOC. Subsequently, counsel noted that that in the amended BOC it was noted that the Appellant's aunt was told by the PSB that the three had been caught. The RPD rejected this explanation and indicated that being caught is different from being arrested. d. The Appellant testified in regard to a detailed plan for what would happen to the North Koreans after they took shelter in his home, but this plan was omitted in his BOC. e. There was some confusion regarding whether there were two summonses or only one. The Appellant explained that what he heard was that the second time they went to his house a summons was left. f. The Appellant testified that a summons was left on XXXX XXXX, but in response to a confirming question he said it was not XXXX XXXX, it was XXXX XXXX. When the inconsistency was noted the Appellant said that perhaps he was misunderstood. g. The Appellant testified that the PSB always went to his aunt before going to his house because she had the key. However, the Appellant failed to mention this in his BOC. When this was noted, the Appellant responded that he did not think it was necessary to write this. [28] The Appellant submits that the seven credibility findings listed as the basis for the decision involve minor contradictions or omissions. [29] The Appellant further submits all of the credibility findings are microscopic in nature, and as well do not pertain to the central aspect of the claim. [30] The Appellant also submits that the RPD's findings do not justify its rejection of the entirety of the Appellant's testimony. [31] The RAD finds that the RPD did make negative credibility findings in regard to what might be considered to be minor contradictions and omissions, but that they generally did go to the heart of the claim. The RAD notes in this regard that the questions, responses, and omissions concerned North Koreans allegedly harboured by the Appellant, as well as PSB's actions including the issuance of a summons. [32] The RAD finds that while some of the RPD's findings might be considered microscopic in nature, such as the difference between being caught and being arrested, and therefore unreasonable; others, such as the role of the aunt and the date the summons was issued are reasonable. [33] The RAD notes that the RPD might have cited the decision of the Federal Court in Gong,20 in which the Court found that it was reasonabele for the PPRA officer to have come to the conclusion that the evidence did not establish that those who associate or sympathize with Falun Gong practitioners are subjected to cruel and unusual treatment and punishment. The Court further stated that the documentary evidence is on the whole consistent with harassment or discrimination that falls short of the conduct that s 96 and ss 97 (1) are directed to. [34] The RAD further notes that country document evidence21 indicates that persons who assist Falun Gong practitioners may be subject to harassment and detention. It is further indicated that there needs to be a clear and credible sense of assisting Falun Gong or a clear link to the movement to attract the attention of authorities. It is also noted that first-time offenders are released. [35] The RAD notes in this regard that, although this case deals with the provision of a safe haven to North Koreans who had illegally entered China and not those who provided help to Falun Gong practitioners, the issue is sufficiently similar to be cited in regard to this case. [36] The RAD further notes that country document evidence indicates that Chinese authorities have engaged in a policy of pursuit, arrest, and imprisonment in regard to Falun Gong practitioners since the movement was banned in 1999, but this evidence indicates those who provide a safe haven to absconding practitioners or fail to provide the PSB with information regarding their whereabouts are harassed but not subject to persecution or a risk of cruel and unusual punishment. [37] The RAD notes, as well, the lack of similar evidence concerning those who help North Koreans, and the RAD finds it is reasonable to assume that those who help North Koreans who have illegally entered China would be treated in a similar way or possibly even less harshly. [38] The RAD further finds that if the Appellant provided a safe haven for two North Koreans who had illegally entered China, he would be at risk of prosecution and not persecution. Whether the Appellant was denied procedural fairness as a result of interpreter problems in the first sitting of the hearing [39] The RPD noted interpreter problems in the previous sitting of the hearing, and that in the second sitting it would be continuing with questioning where it stopped in the first sitting. [40] The Appellant submits that the RPD did not address the issue of why it was relying on previous testimony if there was a problem with interpretation serious enough to warrant adjournment. [41] The Appellant argues that this situation creates a serious issue of denial of a fair hearing to the Appellant. [42] The RAD notes it has reviewed the whole of the recording of the initial sitting of the hearing. The RAD further notes that none of the issues noted by the RPD as the basis for its negative credibility findings were considered in the first hearing, and no references to the first sitting evidence were cited by the RPD in support of its determination. [43] The RAD finds that the Appellant was not denied a fair hearing as a result of the interpreter problem noted above. DISPOSITION [44] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor is he a person in need of protection. The Appeal is dismissed. (signed) 'Milton Israel' Milton Israel June 12, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Ibid., para 90 7 Dunsmuir, paras 58-61 8 Khosa, para. 89. 9 IRPA, Section 3(2)(a). 10 IRPA, Sections 170(g) and 171(a.2). 11 IRPA, Sections 170(i) and 171(b). 12 IRPA, Section 170(b). 13 IRPA, Section 110(3). 14 Khosa, para. 89. 15 Newton, para. 80. 16 Khosa, para. 89. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 18 Khosa, para 90 19 Dunsmuir, para 50 20 Gong, Jie Dong v MCI (F.C., no. IMM-4200-07), Dawson, May 14, 2008: 2008 FC 600 21 National Document Package, China, 31 October 2013, item 12.27, Response to Information Request CHN104580.E --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02151