TB4-04058

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 : TB4-04058 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 August 20, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Matthew Oh 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of the People's Republic of China, is appealing his decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. He is requesting that the Refugee Appeal Division (RAD) find him to be a Convention refugee. In the alternative, he is requesting that an oral hearing be granted before the RAD or, in the further alternative, that the matter be referred back to the RPD for re-determination by a newly-constituted panel. Since no new evidence has been submitted pursuant to subsection 110(4) of IRPA, the request for an oral hearing is denied. DETERMINATION [2] This appeal is dismissed. Pursuant to Subsection 111(1)(a)) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background [3] The Appellant was born in 1983 in XXXX XXXX, Guangdong, the People's Republic of China. [4] In XXXX2009, the Appellant signed a contract as a subcontractor for a XXXX XXXXand for XXXX XXXX. The terms of the lease were for ten years and the XXXX XXXXbelonged to the village. [5] In XXXX2013, the Appellant received a notice from the XXXXtown government informing him that they wanted to take his business and his XXXX XXXXas they needed the land for construction of a third airport runway. The Appellant was one of four businesses affected. He was given until XXXXof that year to clear out his XXXX. Other than a small amount of cash for compensation, the government did not offer any relocation compensation. When the Appellant and the three others, who were affected, learned of this, they went to the town government office to express their dissatisfaction. It was indicated that the matter would be looked into but, as they did not receive answers, they returned on three additional occasions before the deadline. [6] On XXXX12, 2013, the Appellant and his colleagues learned that their demands had been turned down. They then approached the City government office and were seen by an official from the mayor's office, but were told the jurisdiction was in the hands of the town government. [7] As a result with their dissatisfaction, they decided to hold a demonstration in front of the XXXXtown government building to bring their situation to the public's attention. On XXXX XXXX, 2013 they organized ten people from affected businesses, made posters, and they yelled slogans indicating that the XXXXgovernment was corrupt, and that they did not respect human rights. No one from the building emerged, but crowds formed. Soon after, they heard police sirens. Many Public Security Bureau (PSB) vehicles arrived and officers began to assault the pedestrians. While the Appellant was yelling that the government officials were bullies and corrupt, two PSB officers were heading towards him; nevertheless, he managed to escape to the home of a friend in a different city. [8] However, the Appellant learned, on XXXX XXXX, 2013, that the PSB had gone to his home to arrest him. They searched his house and he was accused of interfering with and slandering government officials as well as illegally gathering people to beleaguer the government offices and officers. The Appellant later learned that three representatives, who had accompanied him to launch complaints, had been arrested as well as one other individual. [9] The Appellant has learned that the PSB continue to search for him, and his XXXX XXXX was taken by the government in XXXX XXXX XXXX2013. [10] With the assistance of a smuggler, the Appellant arrived in Canada on XXXX XXXX, 2013. STANDARD OF INTERVENTION: [11] Two recent Federal Court Decisions, Alvarez1and Eng2 have provided the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first level administrative tribunal. In both decisions, Justice Shore indicates that the appropriate terminology to be used by the RAD is Standard of Intervention given that a Standard of Review analysis relates to appeals for judicial review. [12] As the content of both decisions regarding the role of the RAD is identical, the RAD will cite Alvarez3 in the discussion of the standard of intervention. The Alvarez decision directs the RAD to move away from a reasonableness standard in the assessment of errors of fact and errors of mixed fact and law to a "palpable and overriding error" standard as per the Quebec Court of Appeal in Parizeau4 and the Supreme Court of Canada in Housen.5 Parizeau found that it was the administrative tribunal which could intervene to correct errors of fact, in relation to findings that were not supported by the evidence.6 Housen defines palpable error as one that is plainly seen.7 Overriding errors are those that are determinative to the outcome of the decision. [13] While Alvarez and Eng represent a departure from the reasonableness standard in Dunsmuir,8 these decisions confirm that the RAD owes the RPD a measure of deference in regards to its findings of fact and mixed law and fact.9 Housen indicates that the standard of palpable and overriding error involves a high level of deference to findings of fact, in part, due to the fact that the trial judge has an advantageous position having heard testimony viva voce and due to his or her familiarity with the case as a whole.10 Deference applies to findings of fact related to the credibility of witnesses and also to all conclusions of fact made by the trial judge.11 Housen also indicates that questions of mixed law and fact (where the legal principle is not readily extricable from the facts) involved the trial judge's interpretation of the evidence as a whole should not be overturned absent a palpable and overriding error.12 [14] Alvarez indicates that the appeal to the RAD is not a de novo appeal given the limits of the RAD to accepting new evidence, and to hold hearings on the new evidence outlined in sections 110 (4) and 110(6) of IRPA. The Court notes, however, that the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or erred in the assessment of the facts to the point of making a palpable and overriding error.13 COUNSEL'S SUBMISSIONS [15] Counsel submits that the RPD erred in its credibility findings, with respect to findings that were material to the claim. DETERMINATIVE ISSUE [16] The determinative issue is credibility. [17] The Appellant submits that many of the RPD's negative credibility findings were based on perceived implausibilities in the Appellant's claim. In particular, the Appellant objects to the negative inference drawn from the absence of documentation from the Public Security Bureau (PSB). [18] The RPD found it implausible that the PSB would not have left a summons for the Appellant at his parents' home. It based its finding on the testimony that there had been more than 10 visits by the PSB; that four of the Appellant's fellow villagers had been arrested and incarcerated, including the three representatives who had accompanied the Appellant to the government, however no corroborative evidence was proffered in this regard. The Appellant submits that the RPD's finding is highly speculative and does not provide any evidentiary basis for this conclusion. The Appellant further points to the National Documentation Package (NDP),14 wherein it describes the lack of uniform standards and practices throughout the country. The RAD finds that the RPD's conclusions were speculative that there would be a warning, a warrant or summons from the PSB given the alleged lengthy pursuit of the Appellant. However, it is to be expected given the arrest and alleged continued incarceration of the Appellant's fellow villagers, that corroborative evidence in this regard could have been provided. The RAD also notes that the Appellant's testimony in this regard was vague and contradictory. Furthermore, when asked why, particularly given the fact that family members provided signed testimonials, further information could not have been provided, i.e. jail visiting cards, etc. in the absence of an explanation, the RPD quite properly drew negative inferences. In totality, the RAD finds that the testimony surrounding this material aspect of the Appellant's claim supports the RPD finding of lack of credibility. The Appellant's inability to explain how he received his independent appraisal of the expropriated land. [19] The RPD found that the Appellant struggled to provide information with respect to the issuance of an independent appraisal that he alleged to have obtained for his XXXX XXXX. The Appellant was unable to describe the process of obtaining this appraisal and, even with the assistance of the RPD and his counsel, the Appellant's responses were unsatisfactory. The Appellant argues that the Appellant should not have made a negative inference in this regard. However, the RAD finds that, in the absence of the Appellant's inability to explain the process, it was reasonable for the RPD to draw this negative inference. In fact, after listening to the audio recording of this portion of the proceedings, the RAD finds that the testimony surrounding the worth of the XXXX XXXX was vague and, therefore, the RPD's findings on this material aspect of the claim did not constitute a palpable and overriding error. Weight placed on photographs of some land [20] The RPD placed little weight on these photographs, which did not establish when or where these photos were taken. After looking at the photographs, the RAD agrees with the RPD as the photographs lacked any specificity and could depict any property taken at any time. Given that this is a material aspect of the claim, it would be expected the photographs would provide more verification of the time and site. Demonstration on XXXX XXXX, 2013 [21] The RPD found the testimony, with respect to the Appellant being the only one shouting slogans after the police arrived, to be lacking in credibility. The Appellant submits that this is a speculative credibility finding based on the RPD's subjective assessment of what risks the Appellant would have taken. The Appellant further argues that the RPD appears to have forgotten that there were only four villagers, including the Appellant, who were affected by the expropriation order. The Appellant submits that the others in the crowd were merely onlookers, and, therefore, there was nothing implausible about the Appellant, who had a vested interest in the outcome of his efforts to influence the town government's actions, that he would remain the last of the people in the crowd to be shouting slogans. The RAD finds the RPD's findings of a negative inference to be speculative and, after listening to the audio recording, these findings could have been articulated more clearly. Appellant's Exit from China [22] With respect to the plausibility of the Appellant's exit from China on his own genuine passport, the Appellant submits that the RPD failed to consider material facts in the Appellant's situation and disregarded contradictory documentary evidence. The RPD cited the Golden Shield Project and found that, if the passport were scanned, the Appellant would have been detected of being sought by the PSB. The Appellant submits that the RPD ignored the fact that the Appellant was assisted by a smuggler to exit China. The Appellant submits that the smuggler could have bribed someone or, in the alternative, that the Golden Shield Project is not without its own weaknesses,15 and the RPD ought to have addressed this weakness and the lack of conformity with respect to exits from China. [23] Although not mentioned in its Reasons, after listening to the audio recording of the proceedings, the RPD did not ignore the testimony with respect to the Appellant's exit from China having been facilitated by a smuggler. The RPD was also aware that the Appellant testified that customs had been bribed. However, the RPD posed questions with respect to the scanning of the Appellant's passport and the various checkpoints. It was within this context that the RPD examined the fact that the Appellant had to cross over from China to Hong Kong and then from Hong Kong to Canada without being detected, given the allegation that he was being sought by the PSB. The RAD concludes that, after listening to the audio recording, the RPD considered the facilitation by a smuggler in its findings in this regard. [24] Moreover, the RAD finds that the RPD did a thorough analysis of the NDP package with respect to exit procedures from China,16 including new legislation on The Exit and Entry Administration Law of China. Based on the Appellant's testimony and the foregoing documentation, the RAD finds that the conclusion by the RPD that the Appellant was, in fact, not being sought by the PSB and was able to exit China and Hong Kong, with the assistance of a smuggler, utilizing his own genuine passport, was reasonable. This finding, however, in the RAD's opinion, was not made in isolation, but rather in conjunction with the other credibility issues relating to the material aspects of the claim, and, therefore, did not reveal any palpable and overriding errors. [25] Based on the foregoing, the RAD concludes that the RPD did not err in its decision to reject the appellant's refugee claim. [26] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. (signed) 'Roslyn Ahara' Roslyn Ahara August 20, 2014 Date 1 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702 2 Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 CF 711 3 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702 at para 33 4 Parizeau c Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506 5 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. 6 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702, at para. 26 7 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 237 8 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 9 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702 at para 33 10 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 251 11 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 254-255. 12 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 262 at para 36 13 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702 at para 33 14 RPD-1, National Documentation Package, China, item 9.3 15 RPD-1, National Documentation Package, China, item 10.3, Response to Information Request CHN103133.E 16 RPD-1, National Documentation Package, Response to Information Request CHN104761.E --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-04058