TB7-19018

RAD File / Dossier de la SAR : TB7-19018 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 29, 2019 Date de la décision Panel Linda Hart Tribunal Counsel for the person who is the subject of the appeal Warren Chin 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) alleges that he is a citizen of China. He is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection on the basis that he has not established his identity. DETERMINATION [2] Pursuant to sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) refers this matter back to the RPD for re-determination by a differently constituted panel. This appeal is allowed. BACKGROUND [3] The Appellant alleged before the RPD that he is a citizen of China who worked as a XXXX XXXX in that country. He alleged that he injured his XXXX in XXXX 2015 and the pain persisted despite taking medication and treatments. He was introduced to Falun Gong by a good friend in XXXX 2015 and began to practice with a group in XXXX 2015. His group was raided on XXXX XXXX, 2017 and the Appellant managed to escape. He went into hiding at a cousin's home. While in hiding the Appellant learned from his parents that the Public Security Bureau (PSB) had gone to his home looking for him on XXXX XXXX, 2017 and had advised his parents that two members of his group had already been arrested. The PSB also went to the homes of his uncle and aunt to search for him. [4] The Appellant's mother had hired a smuggler to help him apply for a Canadian visa around the beginning of 2017 after hearing that a Falun Gong group had been found by the PSB. The smuggler helped the Appellant leave China on XXXX XXXX, 2017. The Appellant learned that he was dismissed from his job at the end of XXXX 2017. The Appellant has been told by his parents that the PSB continue to look for him. [5] The Appellant's claim for refugee protection was heard on XXXX XXXX, 2017. In an oral decision on the same day, the RPD rejected his claim finding that the Appellant had failed to adduce sufficient credible and trustworthy evidence to establish his alleged personal and national identity. [6] The Appellant submits that the RPD violated the principles of procedural fairness and natural justice by failing to provide the Appellant with opportunities to meet the case against him, and that the RPD engaged in an unreasonable analysis of his documentary evidence. ANALYSIS Procedural Fairness and Natural Justice [7] The RPD refused the request for an adjournment at the onset of the hearing. Counsel for the claimant had requested the adjournment as the Appellant's Canadian temporary resident visa (TRV) application and accompanying documents disclosed by the RPD had only been received by the Appellant two days before the hearing. Counsel submitted to the RPD that he and his client had not had an opportunity to review the documents in detail and provide an evidentiary response. The RPD refused the motion as the information contained in the visa application had already been discussed with the Appellant at his immigration interview when he made his claim for refugee protection. The RPD noted that the Appellant was aware of the issue of whether he had been in Australia and that there were no surprises in the visa application which also included a copy of his passport. The RPD also noted that the information in regard to his visa application was contained in the Global Case Management System (GCMS) printout which was disclosed to the Appellant when he made his claim for refugee protection in July 2017. The RPD found that it was not bound by the rules and that it could accept and disclose documents when they were provided by immigration authorities. [8] The Appellant argues that there were breaches of the principles of natural justice and procedural fairness with regard to the late disclosure and restrictions on his counsel's submissions at the hearing. He submits that he received disclosure dated August 30, 2017 from the RPD two days before the hearing on September 7, 2017. This disclosure contained 45 pages including his TRV application, and 26 pages of GCMS information request documents. He submits that there was no evidence before the RPD to suggest that he had a copy of the TRV disclosure prior to September 5, 2017. He argues that whether or not he was made aware of the existing TRV application during his meeting with Immigration, Refugees and Citizenship Canada (IRCC), this does not constitute notice nor confirm receipt of the TRV itself, and that despite being aware of the existence of the TRV application, he did not know about its contents. He argues he was deprived of the opportunity to read, digest and formulate a response to the contents of the TRV application, and that he was not given the basic opportunity to know the case to be met. [9] The Appellant submits that courts have recognized a duty of fairness in providing refugee parties a fair opportunity to respond. He submits that the RPD ought to have given him additional time to respond to the disclosure. [10] The Appellant argues that his counsel was instructed at the hearing to limit his submissions only to the issue of identity. In accordance with the RPD's instructions, counsel made submissions relating to the disclosure of the resident identification card (RIC) which he submitted as proof of his identity as a resident of China and was conclusive evidence that the Appellant was who he purported to be. He submits that the RPD rendered its negative decision from the bench on the basis of identity and also made findings of general non-credibility. He submits that the RPD made findings with respect to credibility eight times throughout its reasons. [11] The Appellant argues that the RPD violated the principles of procedural fairness and natural justice in drawing several negative inferences in respect of the Appellant's testimony without providing his counsel an opportunity to give submissions relating to its concerns. He submits that if the RPD believed that he was not credible, it was incumbent upon the RPD to permit submissions with respect to his credibility. He argues that the RPD breached procedural fairness by misleading him and ultimately reaching its negative decision based on an overall determination supported by its cumulative findings. [12] The RAD has reviewed the record, listened to the recording of the hearing and has considered the arguments put forward by the Appellant. [13] Refusal of Adjournment Request: The RAD finds that the RPD did not breach principles of natural justice and procedural fairness by refusing to allow an adjournment of the RPD proceedings. The RAD notes that the disclosure items at issue include the Appellant's visa application to which is attached a copy of his passport and various financial documents. GCMS notes are also included in this package of documents. The GCMS notes relate to the visa application and reflect the information that was contained in that application. Furthermore, the RAD notes that when counsel requested an adjournment in order to review the new documentation in detail and to provide an evidentiary response, he did not indicate what sort of evidentiary response he was considering. [14] The RAD has reviewed the documentation given to the Appellant at the time he was interviewed by immigration authorities (IRCC) in July 2017.2 The RAD notes that GCMS notes were disclosed to the Appellant at that time and that these notes reflect that a visa application was made by the Appellant through the Sydney, Australia mission. The RAD furthermore notes that the Appellant was aware that his presence in Australia was an issue at the time of his interview as the officer's notes reflect that the Appellant had stated that he had never been to Australia. The Appellant's counsel of record at the time of his immigration interview in July 2017 was the same counsel who appeared on his behalf at his hearing and who helped him to prepare his Basis of Claim Form (BOC). [15] The RAD has listened to the recording and finds that the Appellant was given ample opportunity to respond to questions regarding his identity, passport and presence in Australia. The RAD notes that the Appellant was questioned extensively at the hearing regarding the issue of his identity, including what was done for him by the smuggler. The Appellant was not able to explain why the smuggler put his Canadian visa application through a visa office in Australia or why all of his information and visa application indicated that he was a student in Australia, when it was not true. He stated that his mother had hired a smuggler through her friend and he was not aware of what the smuggler did on his behalf. He was unable to explain stamps on his passport showing he visited other countries, other than that this was done by the smuggler. [16] The RAD has considered that after the RPD completed its questions regarding the Appellant's identity, counsel was instructed that his questions should be restricted to the issue of identity. Counsel then replied that he had no questions. The RAD notes that counsel did not make any requests at that time or at the time of his concluding submissions that he be allowed to provide further documentation. The RAD further notes that counsel did not indicate in his submissions that there were any issues of breaches of procedural fairness and natural justice. [17] Having considered all of the information contained in the record as well as the recording of the hearing, the RAD finds that the Appellant was aware of the issues regarding his presence in Australia and his visa application as they related to his identity, as these were raised at his immigration interview when he first made his claim for refugee protection. Although the copy of his passport does not appear to have been disclosed to him at the immigration interview, the RAD notes that the Appellant stated at the hearing that he was shown the passport during the interview. Furthermore, this was his own document which, as he alleged at the hearing, he had used to travel to Canada. The RAD finds on a balance of probabilities that the Appellant would have been aware of the contents of his own passport. Furthermore, although counsel had requested the adjournment at the hearing partially in order to be able to provide an evidentiary response, he did not indicate what sort of evidence he expected to provide and made no request at any time during the hearing to provide post-hearing evidence. The RAD finds that the Appellant was provided sufficient opportunity at the hearing to respond to the RPD's concerns regarding his presence in Australia and the visa application made through an Australian visa office as they related to his identity. [18] Counsel's Submissions: The RAD has listened to the recording of the hearing and notes that although the RPD directed the Appellant's counsel to restrict his questions to the Appellant's identity, no such restriction was given by the RPD in regard to counsel's concluding submissions. Counsel submitted at that time that the Appellant's identity was the central issue of the claim, given the treatment of Falun Gong practitioners in China was persecutory. Counsel submitted that the Appellant's identity was established by his RIC and that there was a presumption of truth. He further submitted that the Appellant did not embellish his testimony and was consistent and credible. The RAD finds that counsel for the Appellant at the RPD hearing was provided with an opportunity to address the RPD's concerns relating to the Appellant's identity, which was the determinative issue in the decision. The RAD finds that when the RPD identified this issue, it was clearly questioning the credibility of the Appellant's allegations regarding his identity as a Chinese national. The RAD finds that counsel was not restricted in his submissions by the RPD from addressing credibility. Documentary Evidence [19] The RPD found that the Appellant had failed to adduce sufficient credible and trustworthy evidence to establish his national and personal identity. The RPD noted that the Appellant had not provided an original passport and rejected his explanation that it was in the hands of the smuggler. The RPD considered that his passport contained allegedly falsified data and that it was incumbent upon the Appellant to provide his original passport for examination. The RPD found that the Appellant had not provided a reasonable explanation for his failure to provide his passport and drew an adverse credibility inference. The RPD found that it could not rely on the photocopy of the passport included in the visa application file as there were modifications to the Appellant's travel history allegedly made by the smuggler in the passport, which the Appellant testified were not legitimate. The RPD noted that there were other documents such as the letter from the Appellant and his Australian student card which he alleged at the hearing were fake documents. The RPD further noted that the signature in the passport was different from the signature in his BOC. [20] The RPD found that the original RIC provided by the Appellant did not establish his identity. The RPD found that the RIC was insufficiently trustworthy and credible to establish the Appellant's identity given that the Appellant had testified that he acquired this document in person in China in XXXX 2017 at a time when his visa application stated that he was residing in Australia. The RPD found that the RIC was a fraudulent document because the Appellant failed to adduce credible testimony that he was in China at the time he acquired this document and because he had access to fraudulent identity documents through the smuggler who had provided him with a fake Hong Kong pass. The RPD considered the documentary evidence that fraudulent identity documents exist in China. [21] The RPD noted that the Appellant's Australian address could be found in the GCMS notes provided to the Appellant when he made his claim for refugee protection in July 2017. The RPD noted that the visa application contained a letter allegedly from the Appellant and that his signature on the letter was similar to the signature on his passport. [22] The RPD found that the Appellant's explanation for the false information in his visa application was not reasonable. The RPD rejected his explanation that the smuggler had put in all of this information about being a student in Australia, as the Appellant had testified that at the time the visa application was submitted he had no fear of persecution in China. The RPD did not find it reasonable in these circumstances that the Appellant would not have applied for a visa himself using his own information, given that he was educated, had a job and had prior travel experience. [23] The RPD reviewed the Appellant's other documents and found that they were insufficient to establish his national identity. [24] The Appellant argues that since his counsel was not permitted to make submissions with respect to credibility, any of the RPD's findings with respect to credibility are improper as a foundation on which to base any subsequent finding with respect to identity. The Appellant submits that the RPD finding that no weight could be given to his RIC in establishing his identity because he was not in China when it was obtained and due to the availability of fraudulent documents in China, was based on erroneous credibility findings. He submits that the panel's overall determination was based on cumulative credibility findings and identity, and one error breaks the chain and renders the whole decision nugatory. [25] The Appellant argues that the RPD erred in questioning the authenticity of his RIC based on its conclusions about the availability of fraudulent documents in China. [26] The Appellant argues that when assessing his passport the RPD was relying on a document that in its own words was unreliable as a means of establishing identity and also sufficiently reliable to impugn his testimony concerning the contents of his TRV. He argues that the RPD cannot find that the document is legitimate for a signature specimen and also unreliable as a means of identification. He argues that the analysis was flawed which makes the decision internally inconsistent and unreliable [27] The RAD has reviewed the record and has conducted its own assessment of the identity documents provided by the Appellant. The RIC [28] The RAD finds that the only irregularity in this document is that it was issued at a time when the Appellant's passport indicates that he was in Australia, which is contrary to the documentary evidence which states a person must apply for the RIC in person.3 The Appellant has denied being in Australia. The RAD notes that the documentary evidence states that an RIC must be issued within 60 days from the date it was applied for.4 The two passports provided to the visa office by the Appellant show that he left Australia on XXXX XXXX, 2016 and arrived in China on XXXX XXXX, 2016. He then returned to Australia on XXXX XXXX, 2017. The RIC submitted by the Appellant was issued on XXXX XXXX, 2017 and therefore could have been applied for in person while he was in China between XXXX 2016 and XXXX 2017. The RIC submitted was valid until XXXX XXXX, 2037 for a period of 20 years. The country conditions documentary evidence regarding RICs indicates that they are a requirement for those 16 years of age and over.5 The RAD notes that the RIC in evidence would have been issued when the Appellant was 27 years old given that his date of birth is XXXX XXXX, 1990. Furthermore, the documentary evidence states that the RICs are valid for 10 years for people aged 16 to 25, 20 years for people aged 26 to 45 and permanently for people who are over 45 years old.6 The RAD notes that the RIC provided by the Appellant is valid for a period of 20 years. The RAD finds that there is nothing on the face of the document that would indicate that it is fraudulent. Furthermore, the RAD finds that the dates in his passports support a finding that the RIC could have been applied for while the Appellant was in China. The Passport [29] The RAD has reviewed the record and has listened to the recording of the hearing. The RAD finds on a balance of probabilities that the passport attached to his visa application is a copy of a genuine document and that the travel stamps in the document are also genuine. The RAD notes that the RPD spent a considerable amount of time comparing the signatures on the visa application, the passport, and the BOC. The Appellant alleged at the hearing that he had no involvement in the visa application and therefore it is not his signature on that document. The RAD has compared the signature in the passport to the signature in the Appellant's BOC and finds that it is unable to observe any significant differences, given that the signatures are in Chinese script and an individual's signature is not always exactly the same. Furthermore, the RAD and the RPD have no particular expertise in analysing handwriting. [30] The RAD has additionally considered that this passport was accepted by Canadian authorities at the mission in Australia as being a genuine document, otherwise it would not have approved the visa application. The RAD notes that in addition to this passport, the Appellant's previous passport was also included in the visa application file. Both of these documents clearly indicate the Appellant's presence in Australia, contrary to the Appellant's allegations that he had never been to that country. The RAD has also considered that the visa application was submitted to a Canadian mission in Australia and not China. The RAD finds on a balance of probabilities, given the extensive supporting documentation included in the visa application which was accepted as genuine by the Canadian authorities, that the visa was applied for in Australia because the Appellant was residing in Australia. Summary [31] The RAD finds on a balance of probabilities that the Appellant is a citizen of China who was a student studying and residing in Australia prior to coming to Canada. The RAD finds that the Appellant was not credible in his allegations that he had never been to Australia. [32] The RAD finds that the RPD erred in finding that the Appellant had not established his identity as a national of China. The RAD cannot substitute a positive decision given that the RPD's questions at the hearing and analysis did not go beyond the issue of identity. The RAD cannot hold a hearing as there has been no new evidence submitted by the Appellant with his appeal. CONCLUSION [33] The appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "Linda Hart" Linda Hart May 29, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, Exhibit 1. 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation (NDP) for China (20 July 2017), item 3.17. 4 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), item 3.17. 5 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), item 3.17. 6 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), item 3.17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19018 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français