TB5-00607

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 : TB5-00607 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 19, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L Goldman 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, a citizen of the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal, nor is she requesting an oral hearing. The Appellant is asking that the Refugee Appeal Division (RAD) find her to be a Convention refugee, or in the alternative, refer the matter back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(c) IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant began to practice Falun Gong (FG) in August 2013 upon the advice of her friend to heal a knee injury. She was aware of the illegality of the practice however, she was assured by her friend that safety precautions were in place. In September, the Appellant joined a group of 13 individuals. She also practiced at home and gradually her health started to improve and her knee completely recovered from the injury. [4] On August 17, 2014, the Public Security Bureau (PSB) approached the Appellant's Falun Gong practice group. On that day, the Appellant was the "back lookout" person. After approximately one hour, the "front lookout" called her and told her to run because the PSB were approaching. The Appellant went into hiding at her maternal uncle's house. [5] On August 18, 2014, the Appellant's mother called her uncle to indicate that the PSB had been to the Appellant's home in pursuit. The PSB had also left a summons with the Appellant's parents accusing the Appellant of being engaged in illegal FG activities and recruiting members for an illegal organization. The Appellant's mother also told her uncle that she had heard that two individuals had been arrested. [6] The PSB continued to pursue the Appellant. Her parents had a discussion with her uncle and they agreed to seek help from friends. A snakehead was located and the Appellant left China using her own genuine Chinese passport. The Appellant fled to Canada on XXXX XXXX, 2014 and made an inland refugee claim a few days later. The Appellant alleges that she has been regularly practicing FG in Milliken Park in Toronto since coming to Canada. She has heard that the PSB are still coming to her home. She also alleges that her fellow practitioners remain in detention. Role of the RAD [7] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. 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 claimant 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." [8] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply one of two approaches, including the "hybrid appeal" approach described by Justice Phelan in Huruglica3 as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.4 Submissions by counsel [9] Were the credibility findings reasonable? Specifically, counsel submits that two findings were microscopic and the third had no evidentiary basis. Credibility Failure to mention the brief study of theory during exercise with practice group [10] The RPD asked the Appellant what her FG group did during practice. When the Appellant omitted to mention that the group also studied Zhuan Falun, the RPD did not accept the explanation that their focus was more on the exercises. [11] The Appellant submits that since the RPD does not state the significance of this omission and since the Appellant submits that this aspect is not important to her personal beliefs or practice, she argues that this conclusion is microscopic. [12] The RAD finds, after listening to the recording of the proceedings, that the RPD asked an open-ended question, with respect to her activities and her response that she performed exercises, while not complete, should not be viewed as a major omission. The RAD further finds that the RPD did not provide a reason for finding that this was a "tell-tale" indication that the Appellant was making up allegations as she went along, thereby detracting from her credibility. Accordingly, the RAD finds that this credibility conclusion is not sustainable. Failure by the Appellant to mention learning of the arrest of her friend and another practitioner while in hiding [13] The Basis of Claim form (BOC) indicates that the Appellant learned of her fellow practitioners' detention, while in hiding, through her mother's contact with her uncle. However, her testimony revealed that the Appellant already knew of their arrest during the practice. As a result of this inconsistency, the RPD found that the Appellant was making up allegations as she went along and therefore drew a further negative inference as to her credibility. [14] The Appellant submits that the question posed was: "What had she learned while in hiding?" She argues that she forgot to mention that her fellow practitioners had been detained. However, she submits that the RPD has failed to provide reasons as to why this is important. [15] In this particular case, the RAD concurs with the RPD that the timing of the detention of the Appellant's fellow practitioners was called into question as well as the fact that these individuals were detained. We do concur, however, that the RPD failed to indicate why this was significant. The RAD, however, after conducting an independent assessment of the entire record, does find that this is a significant aspect of the claim, directly related to the raid and the pursuit of the Appellant. Accordingly, the RAD finds this credibility finding to be sustainable. Ability to leave China using her own genuine passport [16] The RPD found that the Appellant's ability to use her own genuine Chinese passport, with the assistance of a smuggler, when the PSB were in pursuit, contradicted the probative documentary evidence before the RPD.5 [17] The Appellant submits that her exit was facilitated by the use of a smuggler and the RPD acknowledged that this could have made her exit possible in light of the country documents about official corruption in China. The Appellant submits that the word "possible" is a higher test than a balance of probabilities. Moreover, she submits that the RPD failed to cite the particular evidence to contrast that against the actions of the Appellant when leaving the country. [18] After listening to the audio recording of the proceedings, the RAD finds that there was no probative questioning in this regard, save and except for "You left China using your own passport? How were you able to do that if you were wanted by the PSB?" The Appellant responded that "the snakehead told me that he was responsible for that". The RAD concurs with the RPD that this was a justifiable question to ask the Appellant. However, in the absence of further questioning, i.e. how did you get through checkpoints?, did you show your passport?, etc., there is an insufficient evidentiary basis upon which to make a clear finding on this aspect. Moreover, due to this lack of evidence, the RAD is unable to substitute its own finding with respect to this issue. CONCLUSION [19] After conducting an independent assessment of the entire record, the RAD finds that, based on one sustainable credibility finding, and insufficient evidence elicited on the record, the RAD cannot substitute its own decision. [20] Accordingly, this appeal is allowed. The matter is referred back to a newly-constituted panel of the RPD for a more thorough examination of the evidence. (signed) "Roslyn Ahara" Roslyn Ahara May 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Alyafi, Aghiad v. M.C.I (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Supra, footnote 1. 4 Ibid. 5 Exhibit RPD-1, RPD Record, National Documentation Package, China, October 31, 2014, Section 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00607