TB4-07043

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 : TB4-07043 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 November 21, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister & 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 XXXX (a.k.a. XXXX XXXX) (the Appellant), a citizen of China,1 appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and find the Appellant to be a Convention refugee or, in the alternative, refer the matter back to the RPD for redetermination by a differently-constituted panel. [3] The Appellant is not relying on new evidence as per Section 110(4) and is not requesting a hearing pursuant to Section 110(6) of the Immigration and Refugee Protection Act.2 The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111(1) (c) of the Immigration and Refugee Protection Act (IRPA),3 the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. BACKGROUND [5] The Appellant alleged that he practices Falun Gong. The Appellant alleged that he started to practice Falun Gong in China with his friend in August 2012, and soon thereafter started to practice the exercises in a group. The Appellant alleged that the precipitating incident that caused him to flee China occurred on XXXX XXXX, 2013. The Appellant alleged that they were practicing Falun Gong in his friend's house when the Public Security Bureau (PSB) raided the home. The Appellant managed to escape, and thereafter remained in hiding at his cousin's house. The Appellant alleged that the same day the PSB went to his home looking for him. [6] Out of fear of harm and with the assistance of a smuggler, the Appellant was able to leave China. The Appellant travelled on his own passport, and entered Canada using a visitor visa that he alleged was arranged by the smuggler. [7] The Appellant arrived in Canada on XXXX XXXX, 2014. He filed his claim for refugee protection on March 5, 2014 at an inland office of the Citizenship and Immigration Canada (CIC). [8] The Appellant's application for refugee protection was heard on July 10, 2014. In the decision of July 15, 2014, the RPD rejected his refugee claim. [9] The RPD accepted that the Appellant is a citizen of China. The RPD, however, found that the Appellant has failed to establish his personal identity on a balance of probabilities. [10] The Appellant submits that the RPD failed to make key factual findings regarding the central events giving rise to the Appellant's claim for refugee protection, including his Falun Gong activities in Canada. ANALYSIS [11] In considering an appeal against a decision of the RPD, while the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [12] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [13] In Iyamuremye the Court found itself: [E]ntirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...4 The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".5 [14] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.6 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error."7 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a Standard of reasonableness, but then required the use of a higher Standard. The Eng case, released on the same day as Alvarez, contained the same analysis of the issue of Standard of review. [15] In Malhotra,8 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a Standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the Standard of review, it observed that the RAD had applied a Standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [16] More recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.9 It found that the RAD erred in simply reviewing the RPD's decision on a Standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of reasonableness Standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a Standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.10 [17] While the Court had endorsed the Standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such Standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." As instructed by the Court, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. [18] In this appeal, the RAD adopts and will follow guidance from the case law in Huruglica. Merits of the Appeal The Appellant's Pleadings11 [19] The Appellant submits that the RPD erred in its determination because the Panel: a) erred in its analysis of the Applicant's personal identity documents; b) engaged in a microscopic analysis of the Applicant's family's biographical details; c) erred in its analysis of the Applicant's ability to obtain a Hukou; d) misconstrued the nature of the Basis of Claim (BOC); e) failed to make key factual findings regarding the central events giving rise to the Applicant's claim for refugee protection; and f) failed to conduct an analysis of the Applicant's sur place claim.12 The RAD Analysis [20] The RPD found that the Appellant has failed to establish his personal identity on a balance of probabilities.13 In this respect, the RPD states the following in paragraph 12 of its "Reasons for Decision": "Due to numerous credibility concerns related to the claimant's testimony regarding his family, his household registration, and his testimony regarding the PSB, the panel finds that the claimant has failed to establish his personal identity and he is also lacking in credibility, on a balance of probabilities. While the claimant did submit other documents to corroborate his claim such as his Resident Identity Card (RIC) and a summons the panel finds these do not outweigh the claimant's testimony. He panel places no weight on the documents and finds, particularly in the case of the Hukou, thus this document is lacking in credibility. For these reasons his claim fails."14 [21] The RAD finds the RPD, after having seen the Appellant's passport, accepted that the Appellant is a citizen of China. The RAD finds the RPD, however, in paragraphs 7 and 8 of its "Reasons for Decision",15 discusses how the RPD did not find the Appellant credible, relating to the information that the Appellant provided about members of his family and the manner in which he had received the new Hukou. The Appellant submits that the RPD engaged in a microscopic analysis of the Appellant's family's biographical details. The RAD reviewed the RPD Record in its entirety. There is no psychiatric or psychological report in evidence at the RPD. The RAD reviewed the Appellant's testimony against his BOC and other documents submitted. The RAD finds the evidence in the case shows that the Appellant did exhibit difficulty in remembering details, including specific birth dates. Although the RAD finds the discrepancies to be minor, the RAD defers to the RPD for its findings in this regard as the RPD had the opportunity to see and question the Appellant. Nonetheless, the RAD is unclear as to how the RPD's findings in this regard tie in with the Appellant's inability to establish his personal identity, his own name and/or birth date or his identity as a Falun Gong practitioner, the central elements of the claim. [22] The other areas that the RPD's "Reasons for Decision" touched upon include credibility of the Appellant's allegations relating to the PSB's visits to the Appellant's house and that the PSB left a Summons.16 The RPD did not find it credible that the Appellant's family would go to the PSB to update or get a new Hukou when it was the Appellant's own evidence that the PSB had repeatedly come to the family home looking for him.17 The Appellant testified that the PSB were looking for him and not his family. The RPD referred to the Board documentary evidence which shows that the PSB detains, questions, and persecutes known members of Falun Gong practitioners.18 The Appellant refers to the documentary evidence which states that there is evidence of a lack of consistency in policing standards in China; and that the public security officials routinely fail to follow established laws and regulations.19 The RAD reviewed the documentary evidence and finds that the preponderance of the documentary evidence relating to Falun Gong practice in China indicates that Falun Gong practitioners and members of their families are at risk of persecution in China. Therefore, the RAD finds merit in the RPD finding the Appellant not credible that the Appellant's family would go to the PSB to update or get a new Hukou when it was the Appellant's own evidence that the PSB had repeatedly come to the family home looking for him. [23] The RPD also does not find the Appellant credible in that the PSB continues to look for him and left a Summons;20 the RPD found that the Appellant added these details to embellish his claim. The RPD asked the Appellant why he had not mentioned the numerous visits by the PSB in his BOC; the Appellant's counsel submitted at the RPD that the reference in the BOC is to multiple visits. The RPD disagreed with the Appellant's counsel's submissions on this point. The RAD reviewed the Appellant's BOC;21 the RAD finds the narrative mentioned the PSB's visit to the Appellant's house on XXXX XXXX, 2013 and makes reference to the PSB returning to the Appellant's house looking for him. The RAD finds it is not clear from the information in the BOC if the PSB returned once or multiple times. Therefore, the RAD finds the evidence in this case does not establish, on a balance of probabilities, that there exists discrepancy in the Appellant's evidence relating to visits by the PSB to his home looking for him. Therefore, the RAD does not concur with the RPD's finding in this regard. The Appellant had also submitted a Summons left with his wife by the PSB. The RPD found that the Summons did not outweigh the Appellant's testimony; the RAD finds this to be a circular argument considering that the RAD finds the RPD's findings relating to the PSB's visits to the house are wrong. [24] Regardless, the RAD finds the central issue in this appeal is that the RPD does not clarify what personal identity the RPD was referring to in making its credibility findings, particularly in reference to the Appellant's Hukou, and his RIC in paragraph 12 in the RPD's "Reasons for Decision" quoted above. Moreover, the RAD finds the RPD does not directly address the central elements of the claim; i.e., the Appellant's identity as a Falun Gong practitioner in China and/or in Canada, and thus does not address the credibility of the Appellant's allegations in relation to him being in fear upon return to China due to his alleged Falun Gong activity/ies. The RAD finds the RPD's findings are not transparent, and are not intelligible. [25] Based on the foregoing, the RAD finds the RPD's determination cannot be sustained. [26] The RAD's assessment in this case shows that the RPD did not properly assess the evidence, and did not justify its conclusions. Specifically, the RAD finds the RPD does not clarify what personal identity the RPD was referring to in making all of its credibility findings. Considering that the RPD accepted that the Appellant is a citizen of China, the RAD questions if the RPD was finding the Appellant not credible relating to his name or his date of birth or both, or his identity as a resident of XXXX, in northern XXXX province in China, or as a Falun Gong practitioner in China or in Canada or both. This remained unclear. The RAD reviewed the totality of the evidence in this case and finds the RPD generally skirts around the core issues in the claim, and frequently hovers around in areas peripheral to the claim. [27] Based on the above analysis, the RAD finds the Appellant's submissions that the RPD failed to make key factual findings regarding the central events giving rise to the Applicant's claim for refugee protection are meritorious. Based on the totality of the evidence in this case and the foregoing analysis, the RAD finds the RPD erred by failing to properly assess the evidence as relating to the central elements of the claim. Since the RAD finds the RPD erred by failing to properly assess the evidence as relating to the central elements of the claim, the RAD finds this is sufficient in allowing this appeal. Therefore, the RAD does not find it necessary to address the Appellants' other pleadings relating to the peripheral issues in the claim. [28] The Appellant asks that the RAD set aside the decision of the RPD, and find the Appellant to be a Convention refugee or, in the alternative, refer the matter back to the RPD for redetermination by a differently-constituted panel. Section 111(1)(c) of the IRPA allows the RAD to refer a matter back to the RPD only if it is wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm the determination or to substitute another determination without hearing evidence that was presented to the RPD [29] Based on the totality of the evidence in this case, the RAD finds there is insufficient evidence in the RPD record upon which the RAD could base its own determination. The RAD finds the RPD has not appropriately addressed at the hearing, and thus has not gathered sufficient information in totality from the Appellant regarding the core elements of the claim. In order to make its own determination, it would be necessary for the RAD to convene an oral hearing in this case. It is clear from Section 110(3) of the IRPA that the oral RAD hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceeding of the Refugee Protection Division....".22 Section 110(6) of the IRPA gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.23 The Appellant has not submitted new evidence. Since there is no new evidence at the RAD, the RAD cannot hold a hearing. [30] As outlined above, the RAD cannot confirm the RPD decision, cannot substitute its own determination, and cannot hold an oral hearing in this case; therefore, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. DISPOSITION [31] Pursuant to Section 111 (1) (c) of the IRPA, the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. [32] This appeal is, therefore, allowed. (signed) "S.S. Kular" S.S. Kular November 21, 2014 Date 1 Exhibit RPD-1, RPD's Record, RPD Exhibits 1 and 5. 2 Exhibit P-2, Appellant's Record, Item 4, Memorandum of Argument of the Appellant, Written Statement, p. 1. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 4 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2. 5 Iyamuremye, para. 3. 6 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 7 Alvarez, para. 33. 8 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768. 9 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 10 Huruglica, para. 45. 11 Exhibit P-2, Appellant's Record, Item 4, Memorandum of Argument of the Appellant. 12 Exhibit P-2, Appellant's Record, Item 4, Memorandum of Argument of the Appellant, para. 2. 13 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, para. 4. 14 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, para. 12. 15 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, paras. 7-8. 16 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, paras. 9-11. 17 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, para. 9. 18 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, para. 9. 19 Exhibit P-2, Appellant's Record, Item 4, Memorandum of Argument of the Appellant, paras. 45-48. 20 Exhibit P-2, Appellant's Record, Item 2, Notice of Decision and Reasons, para. 10. 21 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, the Appellant's Basis of Claim (BoC) Form Narrative, p.3. 22 Immigration and Refugee Protection Act,, Section 110(3). 23 Immigration and Refugee Protection Act,, Section 110(6). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07043