TB5-10663

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 : TB5-10663 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 1, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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 ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted new evidence in support of her appeal and does not request an oral hearing under section 110(6). [2] The Appellant respectfully requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and that her claim for refugee protection be accepted by the RAD. In the alternative, the Appellant respectfully requests that her claim be referred back to the RPD to be reheard by a differently constituted panel. DETERMINATION [3] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination. Memorandum of Appeal [4] The Appellant raises the following issues:1 i) What is the appropriate standard of review? ii) Did the RPD err in its credibility findings, and/or was its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of her claim, unreasonable? iii) Based on the RAD's independent assessment of the RPD decision and the evidence adduced at the RPD hearing, is the Appellant a Convention refugee or person in need of protection? BACKGROUND [5] A friend, XXXX XXXX, encouraged the Appellant to try Falun Gong to help her with headaches, dizziness and sleeplessness. She began to practice in XXXX 2014, and on XXXX XXXX, 2014 she joined a group practice, which she attended on Sundays thereafter. The Appellant found that her health improved as a result of her practice and her husband joined the Falun Gong practice group in XXXX 2014. [6] On XXXX XXXX, 2014, while she and her husband were out of town, the Appellant received a phone call from a fellow practitioner, Mr. XXXX, who informed them that their Falun Gong practice group had been raided by the Public Security Bureau (PSB); some practitioners had escaped and others had been arrested. He advised that they go into hiding and they therefore went to the home of the Appellant's husband's aunt. While in hiding, they learned from the Appellant's in-laws that the PSB had been to their home on XXXX XXXX XXXX 2014 to arrest them. The PSB also returned to their home one week later and the Appellant realized it was too dangerous to remain in China, so she and her husband made arrangements through an agent to leave China, travelling via the USA. [7] They arrived in the USA on XXXX XXXX XXXX 2015; however, the Appellant's husband became ill and had to receive medical care in the USA. Hence, he was unable to travel further, but the female Appellant went onward to Canada on May 5, 2015, guided by the agent. Since being in Canada, the Appellant was informed that the PSB are still looking for her and the arrested practitioners are still detained. [8] The Appellant's claim for refugee protection was held on August 11, 2015 and September 2, 2015. In a decision of September 18, 2015, the RPD found that the claimant was neither a Convention refugee nor a person in need of protection, and had not established a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, the Appellant would personally be subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment, upon return to China ROLE OF THE RAD [9] The Appellant respectfully submits that the Federal Court decision, in Huruglica, provides the RAD with guidance in relation to the appropriate standard that must be applied. The RAD agrees, and finds that the Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the [Appellant] is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. MERITS OF THE APPEAL Determinative Issue [11] The refugee hearing involved two sittings; the first on August 11, 2015 and the second on September 2, 2015. In reviewing the recordings, the RAD found that the second sitting ended at 1:15 when the RPD member adjourned for a 15 minute recess. When the hearing resumed, presumably the recorder was not turned on, and as a result the RAD has an incomplete record of the RPD refugee hearing. Disposition [12] The RAD refers the matter back to the RPD for redetermination, according to section 111(1)(c) of the IRPA. (signed) "Robert S. Garner" Robert S. Garner December 1, 2015 Date 1 Exhibit P-2, Appellant's Record, p. 19. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10663