TB3-09055

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 : TB3-09055 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (aka XXXX XXXX) Personne(s) en cause Date(s) of hearing October 29, 2015 Date(s) de l'audience Appeal heard at Toronto, Ontario Appel instruit à Date of decision November 4, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael Korman Barrister and Solicitor Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister M. Correia B. Surman Conseil du ministre REASONS AND DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find him to be a Convention refugee or refer the matter back to the RPD for redetermination. [2] The Minister of Citizenship and Immigration Canada (the Minister) intervenes in this appeal and provides new evidence in support of that intervention. The Minister asks the RAD to confirm the determination of the RPD. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [4] The Appellant's refugee claim before the RPD was joined with the claims of his parents. His parents alleged that the Chinese authorities expropriated their family farm, while offering insufficient and unfair compensation. The family organized the people of their village to collectively protest against the injustice. As a result, the Appellant's parents were allegedly sought by the Public Security Bureau (PSB), while the Appellant was suspended from the college he attended. The family left China with the help of a smuggler and sought refugee protection in Canada. [5] The refugee claims of the Appellants and his parents were heard on November 7, 2013. By a decision of November 21, 2013, the RPD accepted the claims of the parents, finding their allegations to be credible and concluding that they were at risk upon return to China. The RPD rejected the Appellant's claim, noting that the PSB had shown no interest in arresting him and finding that suspension from school was not persecutory. [6] On December 9, 2013, the Appellant filed an appeal to the RAD. On January 9, 2014, the Minister intervened in that appeal. The Minister provided new evidence in the form of applications made by the Appellant and his parents for U.S. visas; the information in those applications indicated that the Appellant's parents were not farmers and that the Appellant did not attend the college he claimed to have been suspended from. The Minister asked the RAD to dismiss the Appellant's appeal. The Appellant did not file a response to the Minister's intervention, and neither the Appellant nor the Minister asked the RAD to hold an oral hearing. [7] On March 15, 2014, a differently constituted panel of the RAD dismissed the Appellant's appeal. The RAD found the Minister's evidence to be compelling and uncontested, and it concluded that the Appellant was not credible when he claimed that the family farm was expropriated. The RAD held that the RPD reasonably rejected the Appellant's refugee claim. [8] The Appellant applied for and was granted leave to seek judicial review of the RAD's decision. He argued before the Federal Court that the RAD should have held an oral hearing, despite the fact that neither he nor the Minister requested such. The Court concluded that, although the legislation clearly states that the RAD may hold a hearing where certain conditions are met, this means that an oral hearing is generally required when those criteria are satisfied.1 The Court declined to certify a question and, in a judgment of July 27, 2015, referred the matter back to a differently constituted panel of the RAD for redetermination. [9] On September 24, 2015, the RAD issued to the parties a Notice to Appear for a Hearing, scheduled for October 13, 2015, and later rescheduled for October 29, 2015. Pursuant to Rule 57, the RAD set out the issues to be considered at the hearing as "the new evidence presented to the RAD by the Minister and its effect, if any, on the Applicant's credibility". The oral hearing was held on October 29, 2015. The Appellant was questioned by Minister's counsel, by the RAD member, and by his own counsel with respect to the Minister's evidence. ANALYSIS Admissibility of Evidence Submitted on Appeal [10] While the IRPA sets out restrictions on new evidence submitted by the subject of an appeal, those restrictions do not apply to the Minister.2 [11] The RAD may receive and base its decision on evidence that is adduced in the proceedings and that is considered credible or trustworthy in the circumstances.3 [12] The Minister's evidence consists of U.S. visa applications made by the Appellant and his parents. The RAD has no reason to doubt that these are credible or trustworthy documents, and in fact the Appellant does not contest their credibility. The Minister's evidence is therefore admitted in this appeal. What is the Role of the RAD? [13] 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. [14] The Appellant submits that an appeal to the RAD is a de novo proceeding in which the RAD should show little, if any, deference to findings of the RPD. The Minister makes no specific submissions on the standard of intervention to be applied here. [15] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.4 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [16] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [17] Where the proceeding is a true appeal-that is, where there is no admissible new evidence-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [18] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, as is the case here, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.5 [19] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [20] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [21] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [22] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The Appellant's Credibility [23] The RPD found the Appellant's parents to be credible in their testimony. However: [14] The panel had some concerns regarding the fact that on January 29, 2013 the claimants along with their son applied for a U.S. visa. The concern was about the timing. The panel was perplexed as to why the claimants would choose to go sight-seeing in the US - as per their testimony-, while they were in the middle of an expropriation battle with the local authorities. The claimants explained that one of their friends told them about the trip he took last year to the US, and they were interested to do the same. The claimants also testified that they applied for the visa, but they did not plan to travel until they settle the expropriation issue. As the panel has no further evidence regarding the US visa, the panel decided to give the claimants the benefit of the doubt and accepts the claimants' explanation for their action.6 [24] The RPD had some concern with the Appellant's credibility. It considered his testimony that he fears being arrested by the PSB, and also the evidence that the PSB came to the family home at least five times to seek his parents, but showed no interest in arresting him. The panel concluded that "the claimant's testimony that he is being pursued by the PSB is not credible".7 [25] The Appellant concedes that the PSB did not seek to apprehend him during visits to his home; however, he argues that this does not establish that they will not seek him in the future, as he was actively involved in anti-government activities along with his parents. He alleges that the PSB explicitly told him they were aware of his illegal activities and that they visited his college to arrange for his suspension. He argues further that the PSB did threaten him, telling him that he would find himself in trouble if he did not cooperate with their efforts to locate his parents. Finally, he also points to objective evidence that the PSB targets family members of those wanted by the authorities. In his submission, the RPD erred by failing to conduct a proper forward-looking assessment of the risk he faces upon return. [26] With respect to the Minister's new evidence, the Appellant submits that he has provided an explanation for the inconsistency between his Basis of Claim (BoC) and the information provided in the visa applications. His family hired a travel agency, which placed false information in the initial applications, and later they hired a smuggler, who obtained the prior false information and again included it in the second applications. [27] The Minister argues that the new evidence indicates that the Appellant's family did not have a farm or work as farmers, did not have a village, that the Appellant did not attend the technical college he claimed to have been suspended from, and, contrary to their testimony before the RPD, did have a specific departure date for their first planned visit to the U.S. In the Minister's submission, the Appellant and his parents lived in an apartment complex, his father worked in XXXX, and the Appellant studied XXXX at a university. The Minister argues that the new evidence completely undermines the core of the Appellant's refugee claim-that he is sought by the authorities as a result of issues arising out of the expropriation of the family farm. [28] In the RAD's view, the determinative issue here is the credibility of the Appellant. While the RAD will often defer to the RPD on matters of credibility, in this case the RAD had the opportunity to see, hear, and question the Appellant on the issue that is central to his credibility, and therefore no deference is warranted with respect to that issue. [29] If the information in the U.S. visa applications is true, the Appellant's refugee claim cannot be. If the Appellant was a XXXX student at university, and his father was a XXXX XXXX, and if the family lived in the city, then the Appellant could not have been expelled from a technical college, his family could not have been farmers, and he is not at risk because of anti-government activities undertaken in response to an unjust land expropriation. [30] The first visa application-made in late January of 2013-must be considered in the context of the allegations in the Appellant's refugee claim.8 He alleged in his BoC narrative that, on XXXX XXXX, 2013, his family received an expropriation notice from the local authorities. In his oral testimony before the RAD, the Appellant confirmed that this letter was considered a "demolition notice". A second notice was received on XXXX XXXX, 2013, and it indicated that the compensation for the expropriation would be completely insufficient. The Appellant and his family "were very disappointed" and "knew that we had to take steps to deal with the matter". [31] XXXX XXXX XXXX villagers met at the farm and, on XXXX XXXX, 2013, went to the village committee to express their concerns. They were told to leave their land "or be forcibly driven out". They were "very upset", and, on XXXX XXXX, approached the town government, only to be told they had come with too many people and should leave and put their concerns in writing. Thereafter, they began work on a petition, which was delivered by the Appellant's parents on XXXX XXXX, 2013.9 [32] In the midst of all of this, it seems that the Appellant and his parents applied to vacation in the United States. He told the RAD that the family had some extra money from their profitable farm, and they wanted to see the U.S. They had every intention of returning to China, and this was not an attempt to escape their difficult situation. [33] It must be noted here that the Appellant was not a good witness before the RAD. Despite instructions, he did not respond directly to questions, and he often gave vague answers. [34] The Appellant was asked a number of times to explain why his family planned to go on vacation when they had allegedly received expropriation/demolition notices, learned of unjust and insufficient compensation, and begun a vigorous effort to oppose the government's actions. The Appellant's response was nonsensical. He repeatedly explained that the family did not want to look bad by failing to show for their interview at the U.S. consulate. It seemed that, in the Appellant's mind, the visa application had already been initiated, and his family did not want their land troubles to disrupt that process. The problem with this explanation is that the visa application was in fact not signed until XXXX XXXX, 2013-fourteen days after the first expropriation/demolition letter, seven days after the second, three days after the unsuccessful meeting with the village committee, and the day after the fruitless meeting with the town government. This was remarkable timing indeed, and the Appellant could not provide an explanation for it. Not only did the family make the application on XXXX XXXX, but they attended an interview five days later. [35] The Appellant was asked by the RAD whether, in light of the difficult circumstances facing his family, they discussed cancelling the U.S. trip. He testified that it was not discussed at all, at least not with him. [36] The Appellant gave contradictory evidence about the dates of the planned trip. Given the circumstances that the Appellant's family allegedly faced-they were to vacate their land by XXXX XXXX, 2013-the timing of the trip is very important. The Appellant told the RPD that the visa sought would allow multiple entries, and he could thus travel during the summer holidays or when he had time;10 he told the RAD that the trip was planned for the spring festival, when he had holidays from school. When confronted by his counsel with this significant inconsistency, he did not provide an explanation; he said he was just thinking of having fun, but then the demolition notice came and changed the mood. Despite being pressed by counsel, he could not provide a coherent explanation for the fact that his family initiated the visa application after this change of mood. [37] Other elements of the Appellant's testimony before the RAD also gave rise to credibility concerns. He alleged that, even though he electronically signed the first visa application, he had no idea that it contained significant false information. He claimed that, despite the failure of that first visa application, a smuggler paid to obtain information from that application in order to file an identical second application. Despite the fact that the U.S. authorities interviewed the Appellant and his family with respect to both applications, and rejected the first one, he claims that this rejection was not even mentioned at the time of the second interview, only a few months later. [38] Counsel suggested that the Appellant was not the decision-maker in these matters-his father likely took charge of deciding to make the applications, of when to travel, and what information to provide. While this may be, the RAD cannot accept that the Appellant simply had little or no knowledge of such important matters. At the time he was a 21-year-old post-secondary student. He allegedly helped challenge the land expropriation with actions including preparing the petition and making and hanging protest posters.11 In this context, it is difficult to believe that the Appellant would have had no knowledge of matters such as whether his parents even considered cancelling the U.S. trip which he was also planning to make. [39] It may be that any one of these credibility concerns, in isolation, is not sufficient to rebut the presumption of truthfulness. However, they must be considered in their entirety and in the context of the Appellant's refugee claim. He alleges that the Chinese authorities notified his family that their land would be expropriated, for little compensation, and that they would be forcibly removed if necessary. He and his parents allegedly took prompt action, organizing the villagers and approaching the local authorities. In the midst of this, and with the expropriation deadline looming, they claim that they decided to make a pleasure trip to tour parts of the United States. Even though they claimed they faced financial ruin by losing their land, they initiated an application to travel in order to spend profits they had made from their farm. [40] The Appellant could not provide an explanation for his family's plan to vacation overseas at such a critical time. He gave contradictory evidence about the timing of the planned trip. His testimony was vague and indirect. The RAD finds that the Appellant was lacking in credibility with respect to his evidence about the visa applications and the planned trip to the U.S. [41] The Minister has provided uncontested evidence that the Appellant and his parents made two U.S. visa applications. They provided similar, if not identical, information in both, claiming to live in the city, not in the village, that the Appellant's father worked in XXXX, and that the Appellant was a university XXXX student. The Appellant has not provided a credible explanation for either the content or the timing of the first application; this cannot be explained by a desire to escape persecution, because the Appellant testified that this was not the case. The RAD finds, on a balance of probabilities, that the information provided in the visa applications is truthful. The Appellant therefore did not live on a farm, did not attend a technical school, and has not been suspended by the college or pursued by the PSB over issues relating to expropriation of farmland. [42] The Appellant has failed to establish the core of his refugee claim with credible or trustworthy evidence, and that claim must therefore fail. [43] The RAD recognizes that the Appellant's parents were found to be credible by the RPD and that his claim depends on their evidence. However, here, the RAD has admitted new evidence which was not before the RPD, and the RAD has conducted its own oral hearing and is therefore in a better position than was the RPD to assess the Appellant's credibility. [44] The RAD notes that the Appellant provided various documentary evidence in support of his claim.12 There is objective evidence of widespread use of fraudulent documents in China;13 while this in itself does not establish that the Appellant's documents are false, those documents must be considered in light of both the objective evidence and the Appellant's own credibility. The Appellant is lacking in credibility, and false documents are readily available in China; the RAD therefore assigns no weight to the Appellant's corroborating documents. [45] Finally, the RAD acknowledges the Minister's argument that the Appellant's parents would not have been granted Convention refugee status if the evidence filed in this appeal had been known to the RPD. While this may indeed be the case, the RAD has no jurisdiction to consider the status of the Appellant's parents, as this appeal was filed with respect to only the Appellant. CONCLUSION [46] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld November 4, 2015 Date 1 Zhuo, Jin Han v. M.C.I. (F.C., no. IMM-2693-14), O'Reilly, July 27, 2015, 2015 FC 911, para. 9, emphasis added. 2 IRPA, Sections 110(4) and 171(a.5). 3 IRPA, Section 171(a.3). 4 X (Re), 2015 CanLII 19235 (CA IRB). 5 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014, para. 55. 6 RPD's Reasons, para. 14. 7 RPD's Reasons, para. 26. 8 RPD's Record, pp. 16-18, Basis of Claim narrative. 9 Ibid., paras. 3-8. 10 Exhibit M-1, Minister's Record, p. 3, Partial Transcript, 1:45.31 to 1:47:29. 11 RPD's Record, p. 17, Basis of Claim narrative, paras. 7 and 10. 12 RPD's Record, pp. 176-210. 13 RPD's Record, National Documentation Package for China (3 May 2013), Item 3.26, Response to Information Request (RIR) CHN103134.E, 24 June 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB3-09055