TB6-09437

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 : TB6-09437 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 October 19, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 XXXX (the Appellant), who is a citizen of the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He is relying on new evidence pursuant to Rule 29 of the Immigration and Refugee Protection Act (IRPA), and if accepted, he is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant and a cousin purchased farmland from the village committee in 2007. However, he alleges that in XXXX 2015, they received notice that the land was to be expropriated. They considered the offered compensation to be unreasonable. [4] The Appellant and his cousin went to the village committee to complain and were told to go to the sub-district office. They went the following day, but a large group of villagers had formed and the official told them to write down their concerns and return. The Appellant was chosen as one of the representatives, they took a written petition to authorities, but they were unsuccessful. [5] On XXXX XXXX, 2015, approximately XXXX people demonstrated at the city government. They held banners and chanted. Later the PSB (Public security Bureau) officers came to arrest the demonstrators; however, the Appellant was able to escape and went into hiding. While in hiding, he learned from his wife that the PSB went to his home to arrest him and issued a summons. [6] With the assistance of a smuggler, the Appellant fled China on XXXX XXXX XXXX 2016. ROLE OF RAD [7] The Appellant has made no submissions on the role of the RAD. However, the RAD finds that the recent Federal Court of Appeal decision in Huruglica,1 provides us 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. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. RULE 29 [8] Pursuant to Rules 29 and 37 of the IRPA, the Appellant has submittedthe following new evidence. * A copy of a prison visiting card held by the Appellant's cousin's wife, XXXX XXXX XXXX, indicating that her husband has been imprisoned for XXXX years. This card is dated July 23, 2016;2 * A copy of XXXX XXXX XXXX RIC;3 * A copy of XXXX XXXX Hukou (cousin);4 * A letter from XXXX XXXX XXXX dated August 6, 2016.5 [9] Rule 29 of the IRPA states: Rule 29 (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [10] The RAD finds that the foregoing evidence could not have been submitted prior to the rejection of the claim. The Appellant explains in his affidavit that he received this information on the telephone subsequent to the rejection of the appeal in July 2016, and he obtained the proof on August 12, 2016. [11] Having said this, however, the RAD finds that the audio recording reveals from the testimony that the Appellant's cousin had been arrested. Accordingly, this information is not new, other than the fact that he has now received a sentence. Nevertheless, given the RAD's decision, it is not necessary to make a finding with respect to this issue. SUBMISSIONS BY THE APPELLANT * Did the RPD make unsustainable credibility findings? * Did the RPD err in finding that the Appellant would not be considered a political dissident in China? Exit from China [12] The RPD noted that the Appellant left China on XXXX XXXX, 2016, utilizing his own genuine passport, which he alleges he handed to officials without any problems. The RPD found that the Appellant was able to exit China without being detected, as he was not, in fact, wanted by the PSB. It cites the Golden Shield Project in support of its finding as well as the documentary evidence indicating that airport authorities are connected to Policenet, a PSB database of persons wanted by authorities. The RPD found, that the preponderance of the documentary evidence states that authorities at airports and at borders conduct thorough screening of passengers. [13] It is submitted that the majority of the RPD's decision concerns the Appellant's exit from China. It is argued that, in effect, this was the RPD's determinative issue in this entire claim. It is submitted that the RPD erred by speculating that, despite having paid a smuggler to assist him in leaving China, the Appellant's ability to exit the country using a genuine passport undermined the credibility of his claim. [14] The Appellant argues that the RPD's finding was premised on the speculative assumption that his smuggler did not have the means to ensure his unobstructed passage out of China. It is submitted that while the RPD acknowledges corrupt officials can be bribed, but in the Appellant's case this could not have happened. The Appellant relies on the Federal Court's decisions in Sun,6 Ren,7 Zhang8 and more recently in Yang.9 [15] The RAD concurs with the RPD that the Appellant's ability to exit China without being detected, if wanted by the PSB, is suspect, particularly when four others were arrested, including his cousin, who had leased the expropriated land with the Appellant. Having said this, the RAD finds that the RPD relied on this to then make credibility findings on documentation which is relevant to the claim. Corroborative documents [16] The RPD considered the lease agreement and land expropriation notice, and found while they indicate that the Appellant operated a farm, the Appellant did not own the land that was expropriated. Moreover, the RPD found that these documents did not substantiate the Appellant's assertion that he participated in a demonstration and clashed with authorities. It further considered the summons and other documents, however owing to the credibility concerns, and the Appellant's ability to leave China, the RPD doubted the veracity of these documents. [17] The Appellant submits that the RPD erred by rejecting all of his credible corroborative documentation, most notably the PSB Summons and the Notice of Arrest pertaining to his cousin. It is argued that they were rejected on the grounds that (i) the RPD had already found the Appellant not to be credible on the basis of his ability to exit China; (ii) the documents lacked security features; (iii) fraudulent documents are available in China and (iv) the Appellant used falsified documents to travel to Canada. It is argued that none of these grounds is sustainable. [18] The Appellant argues that the signfiicant sum paid to the smugglers, and the smuggler's entire enterprise is based on spiriting individuals out of China, it is reasonable to assume that he had means of either avoiding detection or ensuring the consent of the necessary airport officials.10 More recently, in Ren,11 the Court found that the RPD erred by impugning the Appellant's credibility based on his ability to exit China using his own passort.12 Even more recently, in Yang,13 the Court found that such a finding amounted to "Simple speculation" as to how one can leave China. [19] It is further argued that the RPD also erred by rejecting the Appellant's documents because he previously used fraudulent documents in order to facilitate his escape to Canada. [20] Finally, the Appellant submits that the RPD erred by failing to even assess some of his corroborative evidence, including the petition that was submitted by the protesting villagers, which corroborates all of the Appellant's core allegations. The RPD, it is submitted, never indicates why this document was rejected. [21] The RAD concurs with the Appellant that the RPD erred when considering the exit from China initially, and then flowing from this, found that the corroborative evidence was lacking in credibility. The RAD notes in particular at paragraph 25 of its reasons, the RPD states: Owing to the credibility concerns and the claimant's ability to leave China using his own travel documents, the panel doubts the veracity of these documents.14 However, when the RAD examines the paragraphs preceding this finding, it concludes that the foregoing statement is referring only to the exit as it made no other credibility findings at that juncture. [22] Moreover, the RAD finds that paragraph 26 is a further error when the RPD relied on falsified documents to come to Canada as a basis for assigning no weight to the corroborative evidence. Did the RPD err in finding that the Appellant would not be considered as political dissident? [23] The RPD noted that the Appellant and his cousin did not own the land that was expropriated. Moreover, they simply wanted increased compensation for his leased property. It noted that the compensation offered was more than what he and his cousin paid for the initial lease. Since the Appellant was not advocating for a change in government, but simply wanted increased compensation for his leased property, the RPD found from the Appellant's testimony, that he would not be considered a political dissident or as one holding anti-regime views or as one who is a threat to government stability. The RPD also considered the fact that the Appellant had done nothing different from the others who had signed the petition. Given the lack of history of protesting anything, the RPD concluded that the Appellant would not be perceived to be any kind of threat or irritant to government officials. [24] The Appellant argues that he had already be found not to be credible and not wanted by the PSB. It is, therefore, unclear why the RPD went on to consider whether the Appellant has a profile sufficient to warrant the interest of the PSB, thereby providing a hypothetical and irrelevant analysis. Notwithstanding this, the Appellant argues that the RPD's finding that the Appellant would not be considered a "political dissident or as one holding anti-regime views or as one who is a threat to government stability" was not supported by the evidence. It is argued that the finding in this regard was based on its belief that the Appellant "was not advocating for a change in government but simply wanted increased compensation for his land." It is submitted that the Board's own documentary evidence indicates that police are cracking down on those protesting such expropriations and forced evictions.15 It is submitted that the foregoing evidence clearly supports the conclusion that the Appellant's actions would, in fact, be perceived by the Chinese authorities as political resistance on political grounds. [25] The RAD finds that it is unnecessary to comment on the foregoing, having already reached its own independent decision. CONCLUSION [26] After conducting an independent assessment of the entire record, the RAD finds that the RPD erred in relying essentially on the exit procedures to reach its outcome with respect to credibility. The RAD further finds that the RPD ought to have addressed the relevant corroborative evidence either in light of other credibility findings, or specific findings with respect to the lack of genuineness of these documents. [27] The Appellant asks the RAD to quash the decision of the RPD and substitute a positive determination, or in the alternative to remit the matter for a new hearing pursuant to section 111(1)(c) of the IRPA. Section 111 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. [28] Section 110(6) 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.16 However, the RAD has found that Rule 29 is not applicable in the determination of this claim. [29] In the RAD's view, the IRPA does not support the de novo hearing of a refugee claim by the RAD. The legislation requires the RAD to proceed without a hearing,17 allows an exception where there is new evidence,18 and prohibits the RAD from rehearing evidence that was presented to the RPD.19 These provisions are simply not consistent with the rehearing of an entire refugee claim by the RAD. [30] The RAD finds that given the unsustainable credibility findings, and the effect that this had on the consideration of corroborative evidence, this decision cannot stand. The RAD further finds that a more thorough analysis is required to determine the risk to the Appellant. [31] For the foregoing reasons, pursuant to section 111(1)(c) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara October 19, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-3, Supplementary Appeal Record, pp. 5-7. 3 Ibid., pp. 8-9. 4 Ibid.. pp. 10-17. 5 Ibid., pp. 18-19. 6 Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny, March 27, 2015, 2015 FC 387. 7 Ren, Fei Hu v. M.C.I. (F.C., no. IMM-1558-15), Boswell, December 18, 2015, 2015 FC 1402. 8 Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-2703-07), Dawson, April 23, 2008, 2008 FC 533. 9 Yang, Yongwen v. M.C.I. (F.C., no. IMM-2638-15), Phelan, May 13, 2016, 2016 FC 543. 10 Sun, supra, footnote 6. 11 Ren, supra, footnote 7. 12 See also Sun, supra, footnote 6 and Zhang, supra, footnote 8. 13 Yang, supra, footnote 9. 14 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 25. 15 Exhibit P-2, Appellant's Record, pp. 93-100,Amnesty International Report CHINA 2015/16; pp. 101-105, RIR no.105284.E dated October 15, 2015; and pp. 106-111, UK Home Office Count4ry of Origin Information Report on China. 16 IRPA, section 110(6). 17 IRPA, section 110(3). 18 IRPA, section 110(6). 19 IRPA, section 111(2)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-09437