TB3-08651

RAD File No. / N° de dossier de la SAR : TB3-08651 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 February 19, 2014 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 her claim for refugee protection. She has 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 its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] The RAD finds the decision of the RPD to be wrong in law. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that she was introduced to the practice of Falun Gong by a friend in XXXX 2012. At that time, the Appellant was experiencing difficulties coping with health issues. The Appellant and a small group of Falun Gong followers would practice Falun Gong together at various secret locations. On XXXX XXXX, 2012, the Appellant was at her group practice session when it was raided by members of the Public Security Bureau (PSB). The Appellant managed to escape and went into hiding. While in hiding, she learned that three members of her group had been arrested and that the PSB had attended her home with a summons on XXXX XXXX, 2012. Fearing she would be arrested, the Appellant used the services of a smuggler to leave China and travel to Canada. She then traveled to Canada where she made a refugee claim. [4] The Appellant's application for refugee protection was heard on October 23, 2013. In an oral decision of October 30, 2013, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. [5] The Appellant submits the following: a) The RPD engaged in unreasonable analysis with respect to the Appellant's supporting document; b) The RPD engaged in unreasonable analysis with respect to the Appellant's delay in making a refugee protection claim; c) The RPD erred in its analysis of the Appellant's identity as a practitioner of Falun Gong; d) The RPD erred in failing to assess the Appellant's summons and supporting documentation for her sur place claim; e) The RPD erred in failing to make factual findings regarding the central events giving rise to the Appellant's claim for refugee protection; and f) The RPD erred in failing to adjudicate the Appellant's claim fairly. [6] The Appellant tendered new evidence in the form of an affidavit in support of her appeal specifically as it relates to the RPD's alleged failure to adjudicate the Appellant's claim fairly. ANALYSIS Admissibility of Evidence Presented on Appeal [7] The Appellant submitted an affidavit1 in her name in support of her appeal. The affidavit was sworn after the rejection of the claim. The RAD finds the issues addressed in the affidavit concern allegations of bias and natural justice. The issue of bias only arose at the time the oral reasons were rendered by the RPD member and could not have been predicted by the Appellant or her counsel at the time of the hearing. While it could be argued that the Appellant or her counsel had the obligation to raise the issue of bias at the conclusion of the rendering of the oral reasons and that a failure to do so constitutes a waiver of bias,2 the RAD finds it is unclear from the record if the issue was raised at that time. There is an indication in the transcript of the hearing that counsel for the Appellant attempted to raise an issue on the record following the rendering of the oral decision; however, the recording was unfortunately discontinued at that time. As a result, the transcript does not contain the issue raised by counsel. In the interest of fairness and natural justice, the RAD gives the Appellant the benefit of the doubt in this regard and finds that the Appellant did not waive the bias issue. Accordingly, the RAD finds the affidavit meets the timing threshold for new evidence set out in s. 110(4) or IRPA. The RAD then considered the new evidence based on the criteria set out in the Federal Court of Appeal decision in Raza,3 which dealt with the admissibility and assessment of new evidence in the Pre-Removal Risk Assessment (PRRA) context. The Raza decision sets out four criteria which should be present before new evidence is admitted for consideration: credibility, relevance, newness, and materiality. The RAD finds that the affidavit meets the criterion under Raza and accepts the affidavit into evidence. STANDARD OF REVIEW [8] 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 submits that the test for an appeal of the [RPD] panel's decision is whether the panel: a) Failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; b) Erred in law in making its decision, whether or not the error appears on the face of the record; or c) Based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. [9] The RAD's analysis of the standard of review to be applied to an appeal of RPD decisions is as follows. [10] In Dunsmuir,4 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,5 which take into account the list of factors in Dunsmuir.6 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [11] 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. [12] 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. [13] 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 the 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. [14] 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. [15] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.7 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.8 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 hearing9 and assess 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. [16] 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.10 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.11 [17] It is 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 on all issues. 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 will be, in most cases, 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".12 [18] Dunsmuir also states that 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. [19] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of the IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearings in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [20] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [21] For these reasons, the standard of correctness will be applied to errors in law. 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.13 [22] In the case at hand, the RAD has focused its decision on the Appellant's submissions that the RPD failed to adjudicate her claim fairly, that the RPD failed to make factual findings on the central issues of her identity as a practitioner of Falun Gong and pursuit of the PSB, and in its failure to address the merits of her Sur Place claim. Failures of this nature are errors in law which are to be assessed under the standard of correctness. The RPD erred in failing to Adjudicate the Appellant's Claim Fairly [23] Although not stated overtly, the RAD notes that the Appellant's submission in this regard is an allegation of bias and breach of natural justice. In essence, the Appellant submits that the manner in which the RPD panel member rendered his decision gave a reasonable apprehension of bias based on an impression that the panel member had pre-determined his decision. [24] The Appellant submits that the circumstances that give rise to this apprehension of bias are as follows. The hearing took place over two sittings on different days and which resulted in five to six hours of testimony. At the completion of the second sitting, the RPD panel member took a 15-minute break. Following the break, the RPD panel member delivered a 45-minute oral decision. While delivering his oral decision, the RPD panel member periodically looked down at what appeared to be written documents in front of him. The Appellant submits that she has the impression that the RPD panel member could not have rendered such a long decision at the hearing unless he had prepared the decision in advance. The Appellant further submits that the Board's own policies pressured the RPD panel member to render an oral decision and influenced his actions. The Appellant submits that even if the panel was reading his notes, it is unreasonable for the panel to put together a 45-minute decision in only 15 minutes. The Appellant further submits that "even if the panel member had not pre-written the negative decision and was reading from neutral notes rather that a pre-written decision, the impression of such a process, in light of the short recess and long decision was that the panel had pre-written the decision."14 [25] Having reviewed the record, in my view, the Appellant has not met the onus of establishing the existence of a reasonable apprehension of bias and breach of natural justice. The test for reasonable apprehension of bias can be found in the dissent of de Grandpré J. in Committee for Justice and Liberty v. National Energy Board15 and as followed in Satiacum.16 "What would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would decide fairly." [26] The bystander test was further defined in a Supreme Court decision (Newfoundland Telephone Co.)17 as: "Whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator." [27] The principles and considerations noted above are equally applicable to administrative tribunals, which are presumed to be impartial in their decision making.18 [28] An analysis of the jurisprudence on the issue raised by the Appellant reveals that if there is an allegation that the member displayed bias because he or she prejudged the claim, the Court will require clear evidence that a predetermination had in fact occurred. [29] In Arthur,19 the Federal Court of Appeal wrote: An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation.... It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. [30] Similarly in Rashid,20 the Federal Court wrote: The question is - what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience. [31] The RAD is not persuaded that the Appellant has provided the material evidence necessary to meet the test articulated in the aforementioned cases. The Appellant has tendered an affidavit in which she states that she was left with an "impression that the [RPD] Board member could not have rendered a long decision at the hearing unless he had prepared the decision before the end of the hearing." The Appellant has not provided any material evidence demonstrating that the RPD's panel member's conduct derogates from the standard. The fact that the panel had rendered its decision from the bench after a short deliberation does not in itself reflect bias.21 [32] The RAD also notes that the Appellant does not allege that the RPD panel member read his reasons directly from a prepared document. Rather, the Appellant alleges that she saw the panel member periodically looking down at something that appeared to be in writing in front of him while rendering his oral decision. The Appellant has not provided any evidence that the RPD panel member was doing anything other than looking at his notes, as the Memorandum seems to acknowledge.22 The RAD notes that there is an expectation that panel members take copious notes of the proceedings including the testimony of witnesses from which they use to inform their decisions. [33] The RAD notes that the case was not a complicated one and the decision is not lengthy. Furthermore, the RAD notes that the syntax, grammar and general readability of the decision is more consistent with an oral decision made at the time rather than one that was pre-written with the benefit of time. In his decision, the RPD Board member included the responses given by the Appellant during the hearing. He also noted discrepancies and submissions made by the Appellant's counsel on those discrepancies. It is apparent to the RAD that the RPD Board member had an open mind with respect to the Appellant's evidence and had not prejudged the case. The RAD finds that the RPD had properly considered the Appellant's allegations and all the evidence submitted. [34] The Appellant also suggests institutional bias in that the Board's policies apply pressure on decision-makers to render more oral decisions and that this pressure influenced the RPD panel member's decision in this case. The RAD finds that the Appellant's argument fails by virtue of the fact she has failed to establish that there was bias in this particular case. [35] Institutional bias will not be found unless a well-informed person would have a reasonable apprehension in a substantial number of cases. Failing that, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case-by-case basis: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3."23 [36] In this case, the Appellant has not brought allegations with respect to a substantial number of cases but only in this individual case. As the RAD has found, there is no reasonable apprehension of bias in this case, and as there are not allegations with respect to any other case or cases, the allegation of institutional bias must also fail. [37] In short, an informed person, viewing the matter realistically and practically-having thought the matter through-would not conclude that there exists a reasonable apprehension of bias. There is no breach of natural justice in this matter. Failure to Make Factual Finding on Central Issues [38] The Appellant submits that the RPD's determination is unreasonable because the RPD failed to make a finding of fact regarding the central factual issues giving rise to the Appellant's claim for refugee protection. In particular, the Appellant submits that the RPD failed to make a factual finding with regard to her identity as a practitioner of Falun Gong in China and her pursuit by the PSB because of her practice of Falun Gong as well as her Sur Place claim arising from her Falun Gong activities in Canada. The RAD finds that the RPD was required to make clear findings with respect to the Appellant's allegations concerning these factual matters given that, if any of these findings were made in the Appellant's favour, the objective evidence before the RPD may have led to a positive determination. [39] While it is true that the RPD did draw some reasonable credibility findings which would serve to undermine the Appellant's allegations that she is being pursued by the PSB, the RAD notes that the RPD failed to address the documentary evidence of the summons. Failure to address this relevant and probative corroborative evidence is a reviewable error. [40] Furthermore, the RAD finds that the RPD failed to make any definitive findings with regard to the Appellant's identity as a practitioner of Falun Gong either in China or in Canada. Whether or not the Appellant is being pursued by the PSB, it was still necessary for the RPD to make a finding with regard to the Appellant's practice of Falun Gong. In other words, even if the RPD found that she was not being pursued by the PSB, it is still possible that she is a practitioner of Falun Gong and, as such, would be at risk in China, if forced to return to China. It was critically important for the RPD to make definitive findings about the truthfulness of the Appellant's allegations of her practice of Falun Gong in both China and Canada and the pursuit of the PSB and the failure to do so constitutes a fatal error. DISPOSITION AND REMEDY [41] Section 111(1)(b) of IRPA allows the RAD to set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made. The RAD may only refer the matter back to the RPD if the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.24 [42] Having found the RPD's decision was wrong in law, the RAD finds that it cannot substitute the RPD's decision without hearing evidence that was presented to the RPD.25 [43] The RAD finds that there are a number of credibility concerns, some of which were identified by the RPD and others that were not addressed by the RPD. In particular: The delay in making a claim in light of the fact that, according to the information in the record, the Appellant had acquired a visa based upon false information provided to Canadian visa authorities including information with respect to her employment and would be at risk of deportation if discovered,26 the Appellant's ability to travel on her own passport from China in light of the objective evidence contained in the National Documentation Package (NDP),27 the Biometrics report which shows that the Appellant sought to obtain US visas on two occasions in the months prior to the alleged raid of her Falun Gong group,28 the lack of persuasive documents to corroborate that members of the Appellant's Falun Gong group were arrested and that the PSB are actively pursuing her in light of the objective evidence concerning arrest, detention and prosecution,29 the Appellant's testimony concerning the treatment of her family members by the PSB due to her practice of Falun Gong,30 and the type of summons tendered in light of the allegations that the PSB were pursuing the Appellant to arrest her. The RAD notes the documentary evidence in the record,31 which would allow the RPD to question why the Appellant was issued a criminal summons to appear in court 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 summons tendered by the Appellant may be inconsistent with her allegations. However, most of these concerns were never put to the Appellant, and, as such, the RAD cannot draw any conclusions. [44] The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility findings on her refugee claim. The new evidence tendered by the Appellant does not offer evidence on which the RAD could substitute a decision, and therefore any substitute decision would have to rely on evidence that was already presented to the RPD. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. [45] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "L. Favreau" L. Favreau February 19, 2014 Date 1 Exhibit P-2, Appellant's Record, Affidavit of XXXX XXXX, December 12, 2013, pp. 15-16. 2 Cheng, Yong v. M.C.I. (F.C.T.D., no. IMM-2726-98), Teitelbaum, April 23, 1999. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 6 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 7 IRPA, s. 110 (1). 8 IRPA, s. 107. 9 IRPA, s. 170. 10 IRPA, s. 110(3). 11 RAD Rule 57. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 14 Exhibit P-2, Appellant's pleadings, p. 42. 15 Committee for Justice and Liberty v. National Energy Board [1978] S.C.R. 369. 16 Satiacum v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 430 (C.A.). 17 Newfoundland Telephone Co., v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636. 18 Arthur, Gertrude v. M.E.I. (1992), 18 Imm. L.R. (2d) 22 (F.C.A.), at para. 8 [See also Ali, Sulaman v. M.C.I. (F.C.T.D., no. IMM-5653-01), Tremblay-Lamer, October 2, 2002; 2002 FCT 1034; Sabri Khader v. M.C.I. (F.C., No. IMM-5383-12), Shore, April 4, 2013; 2013 FC 315, at 38-46. 19 Fehr v. Canada (N.P.B.) (1995), 93 F.T.R. 161, at para. 22; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 92. 20 Roshid, Mohammad v. M.C.I. (F.C., no. IMM-1248-04), Layden-Stevenson, December 8, 2004; 2004 FC 1714. 21 Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., No. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320. 22 Exhibit P-2 Appellant's Pleadings, para. 23 23 Restrepo Benitez, Jose Luis v. M.C.I. (F.C., no. IMM-9766-04), Mosley, April 10, 2006; 2006 FC 461. 24 IRPA, Section 111(2). 25 IRPA, Section 111(2). 26 RPD's record, Exhibit R/A-1 GCMS Report, pp. 46-72 27 RPD's record, Exhibit R/A-1, NDP for China (3 May 2013), item 10.3, RIR CHN103133.E, 2 July 2009. 28 RPD's record, Exhibit RPD-1, pp. 111-112 29 RPD's record, Exhibit R/A-1, NDP for China (3 May 2013), item 9.5 Criminal Procedure Law of the People's Republic of China (2012 Amendment) 30 RPD's record, Exhibit R/A-1, NDP China (3 May 2013), item 12.29. 31 RPD's record, Exhibit 3, NDP for China (October 31, 2012), Item 9.3 and Item 9.10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08651