TB8-06365

RAD File / Dossier de la SAR : TB8-06365 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 May 22, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Hart A Kaminker 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] XXXX XXXX (the "Appellant") is a citizen of China, and alleges to be a Falun Gong practitioner. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] I am allowing the appeal and refer the matter back to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant is a citizen of China and alleges to be a Falun Gong practitioner. In 2015, the Appellant was living in Japan. During that time, the Appellant was contacted by a friend (XXXX) who had sustained a XXXX a few years beforehand. XXXX visited the appellant in Japan, and told the Appellant he had started practising Falun Gong to try to deal with the XXXX symptoms. The Appellant was also asked by XXXX to email him some Falun Gong materials in China. The Appellant did this. [4] The Appellant travelled to Canada on XXXX XXXX 2015 for a sightseeing trip. While there, the Appellant learned from his grandmother that XXXX had been arrested by members of the Public Security Bureau (PSB) along with other Falun Gong practitioners. The PSB also visited the Appellant's home in China several times looking for the Appellant, but never left a summons or other document. [5] The Appellant remained in Canada and never went back to Japan. In XXXX 2016, the Appellant was given a Falun Gong flyer and decided to investigate further. The Appellant started attending group practice in XXXX. At the end of 2016, the Appellant made his refugee claim. The RPD refused his claim on the basis he was found not to be credible. NO NEW EVIDENCE OR ORAL HEARING [6] The Appellant did not submit any new evidence to be considered under s.110(4) of the Immigration and Refugee Protection Act (IRPA).1 No analysis of new evidence is therefore required. [7] As an oral hearing can only be held where there is new evidence that has been admitted under s.110(4), and since there is no new evidence in this case, no oral hearing is required. ISSUES IN APPEAL [8] The Appellant argued the following issues in his appeal: a. The RPD erred in its findings regarding the Appellant's identity documents and its adverse credibility findings stemming from this. b. The RPD erred in its adverse credibility finding stemming from the Appellant's delay in making his refugee claim in Canada. c. The RPD erred in its adverse credibility finding stemming from the lack of any summons being left by the PSB with the Appellant's family in China. d. The RPD erred in its assessment of the Appellant's evidence regarding Falun Gong and its conclusion that the Appellant is not a Falun Gong practitioner. [9] I find that the determinative issue in this appeal is the Appellant's credibility. ANALYSIS [10] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,2 the RPD Decision,3 and the Principal Appellant's Basis of Claim (BOC) form4 as amended,5 amongst other documents. Credibility findings on identity documents is too tangential [11] The RPD made a number of adverse credibility findings against the Appellant based around his allegation of how he lost his Chinese passport, his lack of intent to renew his Residence Identity Card (RIC) and his registration into the hukou6. The Appellant argued that the explanations around these documents was reasonable. [12] In relation to all of these findings, I find the RPD erred by using these as bases for finding the Appellant not credible about his account and about his Falun Gong practice. These issues have little to do with the core of the Appellant's claim. Furthermore, the RPD's findings on these identity documents make even less sense given that the RPD did find the Appellant had established his identity based on other documents provided, predominantly the Temporary Residence Visa (TRV) application to Canada.7 Appellant is not credible [13] In reviewing the remainder of the Appellant's evidence, there are two other issues identified by the RPD as adversely affecting the Appellant's credibility: a. The lack of any summons left by the PSB. b. The delay in claiming. [14] In reviewing the Appellant's evidence, I am also concerned by the Appellant's allegation that the emails containing the Falun Gong information sent to XXXX mysteriously disappeared.8 [15] The Appellant has alleged that the PSB has ordered him to return to China, surrender to them and assist in their investigation about Falun Gong. During 2016, the Appellant alleges that the PSB visited the appellant's home in China at least five times looking for him, but never left a summons or any other documentation. The RPD did not find it credible that the PSB would be that interested in him, but fail to leave a summons. [16] The Appellant has argued that citing Item 9.3 in the National Documentation Package (NDP), oral summonses are possible and that this backs up the Appellant's allegation that no summonses were ever left by the PSB on any of these visits. [17] The combination of the PSB visiting five times without leaving a summons, the delay in claiming, the reasoning behind the Appellant starting Falun Gong given his alleged earlier exposure from sending materials that he at least partially read to XXXX, and the disappearance of the emails which sent these materials is troubling and suspicious. [18] However, suspicion is not sufficient reason to uphold the RPD's decision. In reviewing the materials available, I do not have enough information one way or another to make a decision in this case, and it is for the Appellant to establish his claim. For example, I do not have enough information on whether or not the PSB would truly visit the Appellant's home five times without leaving at least one summons. There is evidence that the PSB do oral summonses, but it is not clear that this would be the PSB's normal method of acting over this many number of visits. [19] In relation to the emails, there was no questioning during the RPD hearing about how these came to be deleted, and the only information I have is within the Appellant's narrative. This testimony is not sufficiently detailed to satisfy me one way or the other as to whether or not I can accept the Appellant's account. [20] Given this state of affairs, I do not have sufficient information to substitute a decision in this case. As a result, the only option left to me is to refer the matter back to the RPD for a new hearing in front of a differently constituted panel. CONCLUSION [21] Where I am unable to confirm, or set aside and substitute my own decision without hearing evidence presented to the RPD, s.111(2)(b) of the Immigration and Refugee Protection Act (IRPA) allows me to return the case to the RPD for re-determination. I choose to do so in this case. [22] Accordingly, pursuant to s.111(1)(c) of the IRPA, I allow the appeal and refer the matter to the RPD for re-determination by a differently constituted panel. (signed) "T. Card" T. Card May 22, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant's Record, Pages 105-114. 3 Ibid., Pages 2-14. 4 Exhibit RPD-1, RPD Record, Exhibit 2, Pages 16-33. 5 Exhibit RPD-1, RPD Record, Exhibit 9, Pages 34-40. 6 Exhibit RPD-1, RPD Record, Exhibit 10, Pages 150-161. 7 Exhibit RPD-1, RPD Record, Exhibit 7, Pages 125-137. 8 Exhibit RPD-1, RPD Record, Exhibit 9, Page 37, Paragraph 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06365 RAD.25.02 (April 04, 2019) Disponible en français 6 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 (April 04, 2019) Disponible en français