TB3-05611

RAD File No. / N° de dossier de la SAR : TB3-05611 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 October 23, 2013 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister and 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 AND 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. She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with 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 refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she was introduced to the practice of Falun Gong by a friend in XXXX 2012. She began to practice Falun Gong in an attempt to resolve health issues. She experienced an improvement in her health shortly after commencing the practice. In XXXX 2013, she was at her regularly scheduled group practice when it was raided by members of the Public Security Bureau (PSB) who were intent on arresting the members of her group. The Appellant immediately went into hiding. She subsequently learned that the PSB had arrested two of her fellow practitioners for Falun Gong activities. Fearing she would be arrested, she used the services of a smuggler and left China on XXXX XXXX, 2013 and travelled via the U.S.A. to Canada, where she made a refugee claim on March 5, 2013. [4] The Appellant's application for refugee protection was heard on May 7, 2013. In a decision of July 26, 2013, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found that the Appellant's evidence concerning her identity as a genuine Falun Gong practitioner was not credible. [5] The Appellant submits that the RPD made erroneous credibility findings, which were based on misapprehended evidence and erroneous and incoherent analysis. The Appellant further submits that the RPD made critical errors in adjudicating her identity as a practitioner of Falun Gong. She submits that the RAD should reject the errors made by the RPD and, on the basis of the remaining evidence, accept her refugee claim. In the alternative, the Appellant requests that her claim be referred back to the RPD for re-determination. STANDARD OF REVIEW [6] The RAD focused on two issues in assessing this appeal. First, failure of the RPD to make a definitive finding with respect to the central issue of the Appellant's identity as a practitioner of Falun Gong in Canada. Secondly, the reasonableness of the RPD's credibility findings. [7] 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. The Appellant makes no submissions on the standard of review; however, she argues that the RPD's findings are unreasonable. [8] 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [9] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [10] These factors are: 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. [11] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [12] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits; while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [13] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.4 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing6 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [14] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.8 [15] It's the RAD's view that given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard. Rather, given that the RPD has held a hearing on the totality of the evidence and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".9 [16] The correctness standard applies to errors of law and issues of general legal importance. Dunsmuir provides guidance in the application of the correctness standard: When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.10 [17] In the case at hand, with regard to the first issue, the Appellant alleges that the RPD erred in not making a definitive finding on the central issue of the Appellant's practice of Falun Gong in Canada. The RAD finds that the RPD's reasons do, in fact, deal with the Appellant's identity as a practitioner of Falun Gong; however, they are deficient in that they do not make a definitive finding with regard to the Appellant's practice in Canada. In light of the foregoing, the RAD finds the RPD's failure to consider the legal doctrine of sur place is an error in law and must be assessed under the standard of correctness. [18] With regard to the second issue, the reasonableness of the RPD's credibility findings, the RAD finds these errors deal with issues of fact and the RPD's treatment of the evidence before it. [19] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.11 THE RPD'S FINDINGS [20] The Appellant argues that the RPD made critical errors on the issue of the Appellant's identity as a genuine practitioner of Falun Gong in China and further made erroneous findings with regard to the Appellant's credibility. Failure to Claim in the USA [21] The RPD found that the Appellant's credibility was undermined by her failure to claim for asylum in the USA. The RPD drew an adverse credibility finding based on the Appellant's failure to claim for asylum when she traveled to the USA in XXXX 2013 to attend a two-week educational course. Despite the fact that the Appellant's identity as a practitioner of Falun Gong had not been discovered by the PSB and that she was not wanted by the PSB at that time, the RPD reasoned that, due to the inherent risk, a genuine practitioner of Falun Gong would seek protection at the first opportunity. The appellant argues that the RPD's finding in this regard is highly speculative as it is not based on any factual basis. The RAD notes that the Appellant's Falun Gong group had not been discovered by the PSB when she traveled to the USA in XXXX 2013. Her testimony was that her group had been practicing for several years without being discovered. She had every reason to believe she could continue her secret practice of Falun Gong when she returned to China. While it is true that she alleges she was engaged in risky behaviour in China, she was not motivated to seek asylum until after her identity as a Faun Gong practitioner was discovered by authorities. The RPD's adverse finding in this regard is unreasonable, as it was speculative and unsupported by the evidence. [22] The RPD's findings were further based on the Appellant's failure to claim in the USA when, following the raid of her Falun Gong group, she travelled to the US on route to Canada. The appellant argues that the RPD ignored the Appellant's evidence that she was acting on the instruction of the smuggler who advised her to seek protection in Canada and not the USA. The Appellant submits that the RPD's adverse finding in this regard was not based on evidence but, rather, it was speculative. [23] The RPD was not persuaded by the Appellant's explanation in this regard. The Appellant testified that she fled China to escape persecution and to seek protection. The RPD noted that the Appellant had previously traveled to the USA recently and that she knew it was legal to practice Falun Gong in the USA. The RAD also notes that the evidence before the RPD is that the Appellant is a sophisticated and educated individual. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.12 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.13 As such, it is open to the RPD to find it is reasonable to expect that persons who fear for their safety would make a refugee claim at their earliest opportunity. The RAD finds that the RPD's credibility finding on this issue was reasonable. [24] Travel on Own Passport: The Appellant argues that the RPD misapprehended the evidence when it found it implausible that the Appellant could leave the country using her own passport. The Appellant argues that documentary evidence relied upon by the RPD was overstated. The appellant refers to Wei. v. Canada (Minister of Citizenship and Immigration) 2010 FC 694 to support to her argument. In that case, the reviewing court took exception to the panel's reliance on the documentary evidence related to the Golden Shield. In particular, the court stated: The information does not confirm that a centralised information sharing system was in place; rather it discusses the intention to put such a network in place. [25] However, the RAD notes that the decision in Wei was based on the documentary evidence that existed in 2010. In the case at hand, the RPD relies on the documentary evidence in the record today. The RAD notes that the United Kingdom Operation Border Report, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.14 [26] Based on the foregoing, it is clear that such a system is in place. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.15 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.16 In this case, there is an evidential foundation for the RPD's findings. The RAD finds that the RPD's credibility finding on this issue was reasonable. Use of Smuggler [27] The RPD concluded that the Appellant's use of a smuggler to leave China was not plausible in light of the fact that the Appellant was already in possession of a valid passport and visa to the USA. The Appellant submits that the RPD's reasons in this regard were unreasonable. [28] The RAD finds that the RPD reasonably concluded that the Appellant's use of a smuggler was not plausible. The RPD noted that the Appellant alleged that she left China prior to the PSB showing interest in her. The PSB did not attend her home to look for her until after she was already in Canada. While the Appellant was in possession of a valid passport and visa to the USA and could have departed for the USA immediately following the raid, the claimant instead chose to obtain a smuggler. In addition, the Appellant's testimony that she was able to board a flight from Vancouver to Toronto without presenting any identification is highly troubling. It strains credulity that, given the security requirements in place at Canadian airports, the Appellant would be able to board a plane without producing her passport or other government issued identification. [29] The RAD notes that, in addition, the Appellant has alleged that the smuggler took her passport and did not return it to her. However, the Appellant provided a copy of her passport as late disclosure to the RPD. Although this raises a concern of how the Appellant was able to acquire a copy of the passport, it would appear these concerns were never put to the Appellant at the hearing. The RAD finds that the RPD's credibility findings with respect to the Appellant's use of a smuggler were reasonable. Summons [30] The RPD found that the summons tendered by the Appellant was not a genuine document. The RPD based its decision on the cumulative effect of the following reasons: a) The summons was issued nine days after the PSB raid. b) The summons required the Appellant to report six days following the issuance of the summons. c) The summons tendered was single page with black ink and red stamps which could easily be made by anyone anywhere. [31] The RAD finds that the RPD's analysis of the summons was somewhat flawed; it was speculative and not supported by the evidence. However, in applying the standard of review, the notion of deference to administrative tribunal decision-making requires not only attention to the reasons offered, but also, which could be offered in support of the decision made. Even if the reasons given are not adequate to support the decision, the RAD must first seek to supplement them within the context of the entire record before finding them unreasonable.17 In this instance, while the RPD's reasons are not adequate in its assessment of the Appellant's ability to depart China using her own passport, there are, nevertheless, reasons which could be offered in support of the RPD's credibility finding. To put it another way, the evidence before the RPD justified a negative credibility finding, even though the RPD's own reasons for that finding are insufficient. [32] Although the RPD drew an adverse credibility finding from the summons being issued nine days after the raid, its findings were unsupported by the evidence and lacked any reasoning. The RPD failed to support its finding in this regard. [33] The RPD also drew an adverse inference with regard to the genuineness of the summons because it required the Appellant to appear six days following the issuance of the summons. The panel relied upon the documentary evidence to support the notion that the summons in China normally requires the person named in the summons to appear within 12 hours. [34] The appellant points to the objective evidence about arrest warrants and summons which indicates that there is wide administrative discretion throughout China, and that there are discrepancies between legislation and its implementation. Further, China is far from complying with rule-of-law standards, some areas of China follow practices which do not conform to national laws and regulations, and local public security officials routinely fail to follow established laws and regulations.18 [35] However, by virtue of the issuance of a summons for the Appellant it would seem that in the case of the Appellant, the PSB were not hesitant to follow the rule-of-law standard. The RAD also has concerns with the type of summons tendered. The summons tendered by the Appellant is a criminal summons in that it orders the Appellant to appear in criminal court. The RAD notes there is documentary evidence in the record19 which would allow the RPD to question why the Appellant was issued a criminal summons to appear in court six days in the future rather than a coercive summons or an arrest warrant when her evidence was that the PSB attended her home to arrest her. The documentary evidence states "criminal summons must be issued before a case is filed for investigation, to those who do not meet the conditions for pre-trial detention or arrest." The summons tendered by the Appellant may be inconsistent with her allegations that the PSB had attended her home to arrest her. However, this was never put to the Appellant, and, as such, the RAD cannot draw any conclusions in the absence of an explanation. [36] The RAD notes at the time the summons was alleged to have been issued, the Appellant had already left China and was in Canada. The RAD notes that the copy of the passport tendered by the Appellant bears an exit stamp which indicates that the Appellant exited China through normal exit procedures. In light of the aforementioned evidence concerning the Golden Shield, in particular, information on passports and exit/entry data, had the police been searching for the Appellant, as she has alleged, it is reasonable to expect that the PSB would be aware that the Appellant was not in China at the time the Appellant alleges they attended her home to look for her. [37] The appellant argues that the RPD's adverse finding based on the summons being a document which could easily be replicated and the availability of fraudulent documents in China is flawed. The Appellant argues that, if the RPD had concerns with the summons, it could have sent it for forensic testing to determine its authenticity. The Appellant points out that the Federal Court has recently held that, although fraudulent documents are widely available in China, it does not mean every document out of China is necessarily fraudulent and that there is an obligation to examine and weigh the actual documents in front of it rather than rejecting them out of hand.20 [38] In the case at hand, it is clear that the RPD did examine and weigh the summons, and it did not arbitrarily discount the summons solely on the basis of the prevalence of fraudulent documents coming out of China. The RPD has examined the original document and is open to draw conclusions about it. The RAD is cognizant that the Federal Court has said that the Board is under no obligation to send documents for forensic analysis.21 Also, the RAD is guided by the Federal Court's decision in Sertkaya,22 which asserts that it is open for the Board to consider the authenticity of documentary evidence, and the ability of the claimant to obtain and use fraudulent documents. The panel is also mindful of the Federal Court's decision in Rasheed, 23 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official, should be accepted as evidence of their contents unless the Board has some valid reason to doubt their authenticity. While not all of the RPD's reasons are valid, the RAD finds there are sufficient reasons for the RPD to doubt the genuineness of the summons. In addition to the irregularities, the RPD noted on the face of the summons, the RAD notes that the RPD has also found that the Appellant is not wanted by the PSB which was based on its assessment of her ability to leave China utilizing her genuine passport and in further finding that the Appellant's testimony that she left China using the services of a smuggler were not credible. While the RPD's analysis of the Appellant's summons was not perfect, the RAD finds that the RPD's findings with regard to the summons overall was reasonable. Falun Gong Identity [39] The Appellant argues that the RPD made errors in considering the Appellant's motivations for her practice of Falun Gong and in adjudicating the Appellant's identity as a Falun Gong practitioner. In particular, the Appellant submits that the RPD not only misconstrued the documentary evidence with regard to the Falun Dafa Association, it further made an error in its decision when it failed to assess the claimant's practice of Falun Gong in Canada. [40] While the Appellant submitted that the RPD's made errors in considering the Appellant's motivations for her practice of Falun Gong, the Appellant failed to state what those errors were in her arguments. [41] However, the Appellant does provide an argument for its submission that the RPD made errors in adjudicating the Appellant's identity as a Falun Gong practitioner. The RPD basis its adverse findings on genuineness of the Appellant's Falun Gong identity on the Appellant's failure to ask the Falun Dafa Association (FDA) in Canada for a letter. The RAD finds that the RPD's finding that a genuine practitioner of Falun Gong would seek out the FDA in Canada is flawed. The RPD's finding in this regard is speculative. In addition, the Appellant testified that she was told by other practitioners in Canada that it was not necessary to join the FDA. An analysis of the documentary evidence relied upon by the RPD, RIR ZZZ103741.E, corroborates the Appellant's testimony in this regard. [42] The Appellant further argues that the RPD's failure to reach a conclusion with respect to the Appellant's Falun Gong identity in Canada is an error. While it is true that a failure to consider the legal principle of sur place in a claim would be an error in law, the RAD finds that the RPD's finding that "the Appellant is not a genuine practitioner of Falun Gong" was meant to apply to both the Appellant's practice of Falun Gong in China and in Canada. Although the RPD's reasons could have been written more clearly, what is clear is that the RPD did put its mind the issue of the Appellant's practice of Falun Gong in Canada. As such, the RAD finds that there is no error in law. [43] On the basis of the totality of the RPD's findings affirmed in these reasons, the RAD finds that, given this evidence, the RPD reasonably concluded that the Appellant is not a genuine practitioner of Falun Gong in China or in Canada. [44] On the basis of the totality of the RPD's findings, the RAD finds the Appellant has not established the basis of her claim and is therefore neither a Convention refugee nor a person in need of protection. [45] The RAD finds that the RPD's decision was justifiable, intelligible, and transparent, and falls within the range of possible, acceptable outcomes defensible in respect to the facts and the law. DISPOSITION [46] 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 a person in need of protection. This appeal is dismissed. (signed) "L. Favreau" L. Favreau October 23, 2013 Date 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 RAD Rule 57. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 11 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 12 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 13 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 14 RPD record, Exhibit 3, National Documentation Package (NDP) for China (31 October 2012), item 2.4. 15 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 16 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 18 RPD record, Exhibit 3, NDP for China (October 31, 2012), Item 9.3, RIR CHN103401.E. 19 RPD record, Exhibit 3, NDP for China (October 31, 2012), Item 9.8, RIR CHN103401.E. 20 Lin, Shou Gui v. M.C.I. (F.C., no. IMM-4437-11), Russell, February 6, 2012; 2012 FC 157. 21 Farooqi, Shaukat Ali v. M.C.I. (F.C., no. IMM-5446-03), Harrington, October 12, 2004; 2004 FC 1396. 22 Sertkaya, Ismail v. M.C.I. (F.C., no. IMM-9058-03), Layden-Stevenson, May 21, 2004; 2004 FC 734. 23 Rasheed, Sohail v. M.C.I. (F.C., no. IMM-1956-03), Martineau, April 21, 2004; 2004 FC 587. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05611