TB8-30720

RAD File / Dossier de la SAR : TB8-30720 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 4, 2020 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for allowing the appeal brought by XXXX XXXX (the Appellant), a citizen of China. I remit the matter to the Refugee Protection Division (RPD) for redetermination. [2] The Appellant alleges that, after his sister died of cancer, he became depressed and turned to Christianity. He alleges that he joined a house church and converted to Christianity, but his church was raided, and he had to go into hiding. He alleges that he fled China with the aid of a smuggler and claimed protection in Canada. [3] The RPD rejected the Appellant's claim based upon credibility. The RPD found that the Appellant's exit from China was not credible in light of objective evidence. The RPD found that the Appellant's delay in claiming undermined his credibility. The RPD found that there were inconsistencies in the Appellant's evidence about his practice of Christianity. The RPD also found there were credibility concerns with the Appellant's evidence about what occurred in China and the Appellant's house church. Finally, the RPD held that the Appellant's documentary evidence did not overcome these concerns. [4] The Appellant argues that the RPD erred. He argues that the RPD erred in assessing credibility by examining his knowledge of Christianity rather than the genuineness of his beliefs and by misapprehending the testimony about his commitment to religion. He argues that the RPD conducted a microscopic assessment of subjective fear, of when he met the smuggler, and of the sur place element of the claim. He argues that the RPD ignored evidence supporting his exit from China and of his reasonable explanation of his delay in claiming. He argues that the overwhelming evidence is that he is Christian and wanted. Finally, he argues the RPD failed to conduct a section 97 assessment. The Appellant did not submit new evidence or request an oral hearing. [5] I find that the RPD's decision is not sustainable. However, I find that there are credibility concerns which cannot be resolved without hearing evidence which was before the RPD. Therefore, I must send the matter back to the RPD. DECISION [6] The appeal is allowed. I send this matter back to the RPD to be redetermined. THE ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] My role is to look at all the evidence and decide if the RPD made the correct decision.1 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [8] After an independent review of the record, I find that there are several credibility findings made by the RPD that I cannot sustain. However, I find that the RPD correctly made credibility findings, and I find credibility concerns which were not raised by the RPD. Moreover, there are unresolved credibility concerns which prohibit me from reaching a final determination without hearing evidence which was before the RPD. The RPD erred in several credibility findings [9] There are several credibility findings made by the RPD that I cannot sustain. The RPD's analysis of exit from China is not sustainable [10] The RPD held that the Appellant's exit from China lacked credibility. The RPD held that, if the Appellant was wanted, he could not have exited China on his own passport, as he alleged. The Appellant argues that the RPD erred because the Member failed to consider the breadth of reliable evidence of corruption which shows that the Appellant could have left China on his own passport with the use of a smuggler. [11] On an independent review of the evidence, I agree with the Appellant that the RPD erred, but not for the reasons that the Appellant argues. In my view, the error here is that the RPD assumes, without explaining why, that any person who is wanted by the Public Security Bureau (PSB) would be noted in the computer database that is monitored for citizens exiting China.2 [12] When I review the documentary evidence, I find that the use of the travel ban is not consistent. A Response to Information Request (RIR) in the China National Documentation Package (NDP) states that the application of exit bans is "arbitrary" and that they are frequently used against activists and human rights lawyers.3 The RIR further notes that high profile activists are placed on the travel "black list", and the examples of individuals banned from leaving China are of high-profile individuals.4 Further, the document notes that bans can be anywhere from a month to a year and can be extended, but at times, there are delays in extensions leading to loopholes where individuals facing bans can exit China.5 The report also notes that dissidents may be placed on the list by provincial level or city level PSBs, and it notes that there are separate lists for people who cannot exit even though they are not charged with a crime.6 When I consider this evidence, I find that, while it is certainly possible that the Appellant would have been put on a travel-ban list, it is also not implausible that he was not. Given the arbitrary nature of the exit ban and the emphasis on high-level individuals, I find the RPD erred in concluding that the Appellant would be on such a list and therefore unable to exit China in some fashion on his own passport. Delay in departure was reasonably explained [13] The RPD held that the Appellant unreasonably delayed in making his claim, as he arrived in Canada in XXXX 2017 and did not make a claim until August, despite his statement that he was fleeing persecution. [14] The Appellant argues that the RPD erred because the Appellant arrived on a valid visitor's visa and was not at immediate risk of being deported. I agree with the Appellant. The Appellant's delay was not lengthy, and he was not at risk of being removed. I find the RPD placed far too much weight on this factor. However, as will be discussed below, I find there are some credibility concerns with the Appellant's evidence about his intentions in arriving in Canada. The Appellant's evidence about Easter was misapprehended by the RPD [15] The RPD took issue with the Appellant's evidence about his practice of the holiday of Easter. The RPD held that the Appellant incorrectly stated he celebrated Easter once, which was inconsistent with the length of time he was a Christian, that he could not state the date that Easter fell on, and he did not know what resurrection meant. The Appellant argues that the RPD conducted an impermissible knowledge test, and therefore this finding is in error. [16] I do not agree with the Appellant. As established by the Federal Court, the Board can evaluate the Appellant's religious knowledge as it relates to the genuineness of his beliefs and can draw a correlation between the depth of knowledge that one would expect someone in the Appellant's position to have, so long as it is not based on a trivia test or on minutiae.7 The Appellant identified Easter as the holiday most important to him. Therefore, I do not find it was unreasonable for the RPD to ask the Appellant about his practice of Easter and the meanings of the holiday. [17] Where I find the RPD erred is that it misapprehended some of the Appellant's testimony and failed to give the Appellant an opportunity to respond. The RPD held that the Appellant could not state what day of the week Easter occurred on. However, reviewing the record, the Appellant stated that the resurrection takes place on Sunday.8 Moreover, the RPD held that the Appellant could not explain what the resurrection was, but I find he did not give the Appellant a chance to explain. The Appellant was asked what was meant by the resurrection was, and he answered that he could not answer the question simply and asked if he could "say a long,"9 which I take to mean he wanted to give a long answer. However, the RPD did not give him a chance to answer but rather moved on to the timing of Easter. Then the RPD held that the Appellant said he could not say what the resurrection was. I find this to be an error. For these reasons, I cannot uphold the RPD's finding about Easter and its impact on the Appellant's Christian beliefs. [18] However, this is not to say that I find the Appellant has established the credibility of his Christian beliefs. The RPD did not give the Appellant the chance to explain the resurrection, so I have no idea of what evidence the Appellant would have given. Further, I share the RPD's concerns about how many Easters the Appellant passed with the church. The Appellant stated he passed only one Easter in two years, and when asked why he testified that his church in China could not have a public celebration of Easter. I find the answer did not respond to the concern, as the RPD did not ask about public celebrations. [19] Therefore, while I am not upholding the RPD's finding, I do not find that the Appellant's testimony on Easter was entirely credible. There are credibility concerns with the Appellant's evidence [20] Both upon my independent review of the record and from the RPD's decision, I find there are credibility concerns with the Appellant's evidence. The Appellant's evidence about his sister's death lacks credibility [21] The Appellant alleged that he turned to Christianity after the death of his sister, XXXX XXXX, XXXX XXXX XXXX. In support of this allegation, the Appellant presented a death certificate and cremation certificate.10 Notably, the cremation certificate is issued in the name "XXXX XXXX XXXX" and gender "male."11 [22] This issue was not canvassed by the RPD. I provided the Appellant an opportunity to respond to this concern, and the Appellant has not done so to date.12 I also asked the Appellant to provide any originals of documents to the RAD, and nothing was submitted. I find that the inconsistencies in names and gender on the cremation certificate undermine the validity of this document and the credibility of the Appellant's allegation that his sister died. On the basis of these unexplained inconsistencies, I find that the Appellant has not established his sister's death, on a balance of probabilities. I further find that the cremation certificate is not genuine, on a balance of probabilities. [23] I find that this is significant, as the Appellant alleged that it was his sister's death which motivated him to try Christianity, despite its illegality. Therefore, this undermines the claim itself. Moreover, I find that the submission of non-genuine documents undermines the validity of the other documents from China, the summons and death certificate. The RPD correctly concluded that the Appellant's evidence about what happened to his house church was not credible [24] The RPD held that the Appellant gave inconsistent evidence about what happened to his house church. Specifically, the Appellant testified that he did not know how many people from his church were arrested and what happened to them, but his Basis of Claim (BOC) amendment sent in days before his hearing stated "two of the people from my church were arrested and remain in detention."13 [25] The Appellant did not challenge this finding, and reviewing the record, I see no error in it. The Appellant offered no coherent answer for this inconsistency. I find that this is a significant inconsistency because it relates to the Appellant's risk if he returned to China. The matter must be returned to the RPD [26] Given that I overturned some of the RPD's findings but upheld others and also identified my own credibility concerns, I considered what the appropriate remedy was in this case. According to the Immigration and Refugee Protection Act (IRPA), I can only refer the matter back to the RPD where I find the RPD's decision to be wrong, and I can neither substitute my own decision or confirm the RPD's decision without hearing evidence that was presented to the RPD. In this instance, I find myself in such a situation for several reasons. [27] First, while the Appellant argues there is "overwhelming" evidence he is wanted in China, I have concerns with the summons, based on the issues I found with the cremation certificate. I also have concerns with the Appellant's testimony about his house church in China. Therefore, I cannot substitute a positive decision on this basis. [28] However, I could potentially substitute a positive decision if I accepted the Appellant was a genuine Christian based upon his practice alone. I cannot do this without hearing evidence which was presented to the RPD. This is because, as discussed above, I find the RPD did not allow the Appellant the opportunity to testify about Easter fully. Additionally, I find that the remainder of the questions asked about religion were largely related to knowledge and not to genuine beliefs, and they do not allow me to conclude whether the Appellant is a genuine Christian, on a balance of probabilities.14 [29] Furthermore, there are other credibility issues on the record, which cannot be resolved without hearing evidence which was before the RPD. For example, there was a question of the Appellant's intention upon coming to Canada. The RPD held it was inconsistent that the Appellant alleged he only learned about claiming refugee protection in August 2017, but he received documents about his claim in XXXX 2017. The Appellant challenges this finding saying that the envelope submitted was not the correct envelope. However, I cannot assess this finding because no questions were asked about the envelope by the RPD, and the envelope is not on the record. Again, this lack of evidence prohibits me from reaching a final conclusion. [30] I am generally reluctant to return a matter back to the RPD. It prolongs the uncertainty for the Appellant and places a burden on an already burdened refugee determination system. However, in this instance, there are simply too many unanswered issues which are determinative. Therefore, I must return the matter to the RPD for redetermination. CONCLUSION [31] The appeal is allowed. I send this matter back to the RPD to be redetermined by a differently constituted panel. [32] The RPD is directed to consider all the evidence, including the genuineness of the Appellant's Christian beliefs. [33] The RPD is also directed to consider the Appellant's documentary evidence, including evidence of his sister's death, evidence he is wanted in China, and the evidence of how he received documents in Canada. (signed) Erin Bobkin E. Bobkin August 4, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Exhibit RPD-1, RPD Record, at p. 7. 3 NDP for China (March 31, 2020), item 14.3, IRB, RIR CHN106355.E, "Exit controls and security measures at airports, particularly Beijing airport, for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification and facial recognition ...", October 3, 2019. 4 NDP for China (March 31, 2020), item 14.3 (ibid.), at p. 6. 5 NDP for China (March 31, 2020), item 14.3 (ibid.), at p. 7-8. 6 NDP for China (March 31, 2020), item 14.3 (ibid.), at pp. 6-7. 7 Lian g 2017 FC 1020 and Gao 2015 FC 1139. 8 Oral testimony from the RPD Hearing, at 02:06:57. 9 Oral testimony from the RPD Hearing, from 02:02:34 to 02:03:30. 10 Exhibit RPD-1, RPD Record, at pp. 108-111. 11 Exhibit RPD-1, RPD Record, at p. 109. 12 Exhibit RAD-1, Member's Direction, June 17, 2020. 13 Exhibit RPD-1, RPD Record, at p. 17. 14 Oral testimony from the RPD Hearing, from 02:11:50 to 02:24:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-30720 RAD.25.02 (January 2020) Disponible en français 2 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 (January 2020) Disponible en français