TB4-00627

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 : TB4-00627 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(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 3, 2015 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dov Maierovitz 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 ("Appellant"), a citizen of the People's Republic of China ("China), appeals a decision of the Refugee Protection Division ("RPD") rejecting her claim for refugee protection. The Refugee Appeal Division ("RAD") previously dismissed the appeal. The RAD decision was set aside by the Federal Court on judicial review. According to a Judgment of Madam Justice G.L. McVeigh, dated June 16, 2015, the appeal was referred back to the RAD for reconsideration by a differently constituted panel. The Appellant tendered new evidence in her appeal and she requested an oral hearing under subsection 110(6) of the Immigration and Refugee Protection Act ("IRPA"). DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111 (1) (b) and (2) of the IRPA, the RAD sets aside the determination of the RPD and substitutes a determination that the Appellant is a Convention refugee. Background [3] The Appellant states she fears persecution in China because of her Falun Gong ("FG") practice. She practiced FG before it was banned in 1999. She started again when she moved from Shenzhen to Beijing in 2010, following the loss of her job and unsuccessful treatment for insomnia. She alleges that her husband also started practicing FG. He is a XXXX with a Beijing XXXX XXXX. [4] The Appellant arrived in Canada on XXXX XXXX, 2013 on a visitor visa. On August 27, 2013, her father-in-law telephoned her from China to say that the Public Security Bureau ("PSB") of China sealed up her apartment in Shenzhen, which she had lent to her friend while it was empty. The PSB sealed the apartment because a friend was practicing FG in the apartment. She states that the PSB also searched her own house in Beijing and found FG CDs, books and materials and detained her husband. She made a claim and wrote her Basis of Claim Form ("BOC") on August 28, 2013. ROLE OF THE RAD [5] The RAD finds that the Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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". [6] Accordingly, the RAD will conduct its own review of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or person in need of protection. The RAD will recognize and respect the conclusions of the RPD on such issues as credibility and/or where the RPD has a particular advantage in reaching its conclusions. [7] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: [8] (a) it is not credible that the Appellant is a FG practitioner; and [9] (b) it is not credible that she will be persecuted as a family member of a FG practitioner (husband) who has been incarcerated. Submissions [10] The Appellant submits that the RPD: (a) erred by failing to consider the totality of evidence filed in support of the Appellant's claim and ignoring submissions; (b) erred by making credibility findings that were impermissibly vague and improperly substituted testimony by the Appellant with its own conjecture; (c) erred by not carrying out its own assessment as to whether there was an objective and subjective basis for the claim pursuant to s. 96 and s. 97(1) of IRPA; and (d) erred by providing an inaudible CD as the CD of the hearing was inaudible in parts. ANALYSIS OF THE MERITS OF THE APPEAL Admissibility of evidence presented on appeal [11] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. [12] The Appellant submitted the following documents as new evidence: (a) Appellant's affidavit, sworn February 13, 2014; (b) Copies of the study visa and study permit for the Appellant's son; (c) Beijing regulation regarding the hukou; (d) letter from XXXX XXXX firm dated January 10, 2014; (e) affidavit of XXXX XXXX, dated January 10, 2014; (f) letter from XXXX XXXX XXXX XXXX XXXX dated October 14 2013; (g) letter from XXXX XXXX XXXX XXXX XXXX XXXX dated February 7, 2014; (h) list of witnesses attesting to the Appellant's FG activities; (i) Financial Times article dated November 6, 2013. [13] The previous RAD decision stated that in addition to section 110(4) of IRPA it considered the factors outlined in the Federal Court of Appeal decision in Raza.2 These factors are: credibility, relevance, newness, and materiality. In reviewing the previous decision, the Federal Court agreed with other Federal Court decisions that the Raza factors were developed in the context of a Pre-removal Risk Assessment (PRRA) determination and they are not automatically applied to assess new evidence on a RAD appeal under section 110(4) of the IRPA. The Federal Court stated that the criteria for admission of evidence on a RAD appeal must be sufficiently flexible to ensure that a "full fact-based appeal" occurs. [14] The Federal Court went on to say that the use of the Raza may not have given the Appellant the full fact-based appeal that she was entitled to under section 110(4) with the accompanying flexibility to admit evidence in an appeal context rather than PRRA context. The Appellant submitted her own affidavit and a letter from her husband's XXXX XXXX that spoke to a deficiency identified by the RPD in rejecting the Notice of Detention. The Notice of Detention was not accepted by the RPD as being credible, but the RAD is in a position to conduct an independent inquiry as to the legitimacy of the documents submitted. The Federal Court also stated that in line with the full appeal, and considering that this was not a credibility finding, the RAD should have undertaken an independent analysis of the Notice of Detention as to whether it was authentic or not. [15] Following the Federal Court's decision in this matter, all the documents submitted as new evidence will be accepted and will be considered with the evidence tendered before the RPD. [16] Section 110(6) of IRPA provides: (6) The Refugee Appeal Division may hold a hearing if in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] The new evidence tendered met the criteria of Section 110(6) and a hearing was held on October 23, 2015. A list of issues for the hearing was prepared and sent to the Appellant. [18] The issues were: 1. Is the following new evidence that is admitted under ss. 110(4) of the IRPA credible and trustworthy? * Appellant's affidavit, sworn February 13, 2014; * Copies of the study visa and study permit for the Appellants' son; * Beijing regulations regarding the hukou; * Letter from XXXX XXXX firm dated January 10, 2014; * Affidavit of XXXX XXXX, dated January 10, 2014; * Letter from XXXX XXXX XXXX XXXX XXXX, dated October 14, 2013; * Letter from XXXX XXXX XXXX XXXX XXXX, dated February 7, 2014; * List of witnesses attesting to the Appellant's Falun Gong activities; * Financial Times article, dated November 6, 2013. 2. If the above evidence is credible and trustworthy, what is the impact on the findings with respect to credibility? HEARING [19] The letter from the XXXX XXXX XXXX XXXX XXXX XXXX, dated February 7, 2014, was written by XXXX XXXX, the vice president of the XXXX XXXX XXXX XXXX XXXX XXXX. Mr. XXXX had also written the letter dated October 29, 2013 from the XXXX XXXX XXXX XXXX XXXX XXXX that had been considered by the RPD. Mr. XXXX was a witness at the hearing. He stated that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX representative of FG practitioners in Canada. [20] The letter of October 29, 2013, stated in part, that the Appellant could face persecution in China due to the detention of her husband. The letter stated that it is a known and highly documented fact that family members of FG practitioners are threatened and pressured to get the FG practitioners and their families to renounce the faith and to stop protesting overseas for an end of persecution. The RPD noted that the letter did not confirm that the Appellant was herself, a FG practitioner. The letter of February 7, 2014 stated that the XXXX XXXX XXXX views the Appellant as a genuine Falun Dafa practitioner and they regretted that they did not include this information in their previous letter. [21] Mr. XXXX testified that in order to write a letter stating that the XXXX XXXX XXXX views a person as a genuine practitioner, the person is observed over an extended period of time and there is a process in reaching that determination. He stated that the Association is composed of an executive board of veteran Chinese practitioners of FG and they observe a claimant over an extended period of time. They determine a person's knowledge of the tenets of FG and their commitment. The executive board, comprised of XXXX veteran Chinese practitioners and Mr. XXXX, determine if they can support a person as a genuine FG practitioner. In addition to observing the person, they get information from leaders of specific projects undertaken by the Association. He stated that it is difficult for a person to "fake" genuineness when surrounded by veteran practitioners. [22] Mr. XXXX was asked why the initial letter of October 29, 2013 did not mention anything about the Appellant being a genuine FG practitioner but instead focused on a family member of the Appellant. He replied that this matter had initially been brought forward in a rush and because the Association is careful as to the individuals they support, they could not determine if she was a genuine practitioner due to the time constraints. The Appellant's parents had previously been found to be Convention refugees who were supported as genuine practitioners by the Association. As a result, in the initial letter, the Association could only write how a family member of FG practitioner would be treated in China. [23] He further testified that they were able to update the letter and state that the Association viewed the Appellant as a genuine practitioner since they had the opportunity to observe the claimant over a period of time in truth clarification activities at the Chinese embassy, a site in Chinatown and at the XXXXMall. They also had the opportunity to observe her in group activities that occurred every Friday evening. He stated that the Association is approached by hundreds of claimants each year asking for its support but they only support approximately 15 individuals in any year. He further stated that it is almost impossible to fool members of the Association over many months and it is very difficult to fake actions and other aspects of FG that are unique to genuine practitioners. [24] The RAD notes that there is documentation3 of the IRB that speaks to the bona fides of the Association and lists Mr. XXXX as the only individual who is authorized to write letters on behalf of the Association of XXXX. Mr.XXXX gave his evidence in a forthright manner and explained why the Association had not supported the Appellant as a genuine practitioner in the original letter. [25] The Appellant also testified at the hearing. It was pointed out to her that the letter from the XXXX XXXX XXXX was on letterhead that purported to be from the XXXX but there were actually two letters, one in Mandarin and one in English, both on the letterhead. It was also pointed out to her that the letter of XXXX XXXX XXXX XXXX XXXX also was on what was purported to be letterhead of the XXXX but that there were two letters again, on separate letterhead paper, one in English and one in Mandarin. Her father-in-law had requested these letters and she testified that he only spoke Mandarin. The letters were in response to his inquiries and his retaining of the XXXX XXXX XXXX XXXX XXXX. It was also pointed out to the Appellant that another letter from the XXXX XXXX XXXX XXXX XXXX tendered in evidence before the RPD was addressed to the XXXXDetention Center asking for visitation privileges to the Appellant's husband. However, this letter was not on the same XXXX letterhead as the other letter. The name of the XXXX XXXX was in Mandarin and this letter had been translated by an individual in Canada. The Appellant stated that she needed the documents translated for her hearing and the XXXX XXXX translated these letters. The RAD does not accept this explanation as the letter to the detention center was not in the same form. All the letters were in response to matters surrounding her husband's alleged detention. The letters on XXXX letterhead in both Mandarin and English and the letter from the second XXXX to the detention centre on different letterhead in Mandarin call into question the authenticity of the documents. There is no reason for the XXXX XXXX to provide a service of translating the letters into English for the purpose of being presented at a refugee hearing in Canada. [26] The Appellant was asked about the affidavit of XXXX XXXX, dated January 10, 2014. Mr. Xi is the father of her husband. In the affidavit, it is stated that Mr. XXXX has tried to visit his son in detention but his requests were always denied with the reason that the case was so sensitive that the authorities would not give any information explaining the details of the case. It was pointed out to the Appellant that the notice of detention that had been produced before the RPD stated that her husband was being detained for XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. This notice of detention had been served on Mr.XXXX. The Appellant was asked why her father-in-law would make the statement that there was no information explaining the details of the case when it was apparent on the face of the Notice of Detention. She responded by saying that the PSB wanted her in custody and the letter of her father-in-law stated that her husband would not be allowed visitors unless she was also in custody. The RAD gives little weight to the letter of Mr.XXXX because of the inconsistency between the letter and the Notice of Detention. The RAD finds that the letters provided from the XXXX XXXX in China are not credible. Rule 29 Application [27] The day prior to the oral hearing the Applicant applied under Rule 29 of the RAD Rules to use documents at the hearing that were not previously provided with the Appellant's record. The RAD ruled at the hearing that these documents did not comply with Rule 57(1) that states a hearing is restricted to matters relating to the issues provided with the Notice to Appear unless the Division considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing. The RAD stated that these documents would not be considered at the hearing since they were not included in the notice of appeal and they would be considered in the written reasons. [28] These documents are: * XXXX XXXX XXXX XXXX XXXX support letter, dated October 11, 2015; * Admission ticket to XXXX XXXX performance, January 24, 2014; * Witness statement from September 2015; * Photos of Appellant's recent Falun Gong activities with explanation note; * Letter of submission from XXXX XXXX, counsel to the Appellant's husband; * Hukou of XXXX XXXX. [29] Rule 29 provides that in deciding whether to allow an application, the RAD must consider any relevant factors including the documents' relevance and probative value; any new evidence the document brings to the appeal; and 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. These documents do not bring any new evidence to the appeal. The Appellant's identity as a FG practitioner has been stated in the previous letters from the XXXX XXXX XXXX XXXX XXXX and the oral evidence of Mr. XXXX given at the hearing. The letters from the XXXX XXXX XXXX XXXX XXXX have been dealt with in the analysis of evidence given at the oral hearing. The hukou was not a relevant issue in this appeal decision. The documents are therefore, not admitted in evidence. Analysis [30] The RAD finds that the Appellant has established her identity as a FG practitioner, as a result of a sur place claim in Canada. The RAD accepts the evidence of the XXXX XXXX XXXX XXXX XXXX given by documents and the oral testimony of Mr. XXXX XXXX. The RAD also notes that the documentary evidence4 of the Immigration and Refugee Protection Board that a FG practitioner who takes part in highly visible activities in support of FG could be monitored by Chinese authorities. A genuine FG practitioner who returns to China and practises FG is at risk of persecution. The RAD, therefore, finds that there is a serious possibility that the Appellant will be persecuted if she returns to China. [31] The RAD does have credibility concerns with regard to the documentation provided by the Appellant alleging that her husband is in detention in China as a result of his alleged FG activities and that he will not be allowed any visitors until the Appellant is in custody. However, these credibility concerns do not taint the evidence of the XXXX XXXX XXXX as to the Appellant being a genuine FG practitioner. DISPOSITION [32] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. (signed) "Ken Atkinson" Ken Atkinson November 3, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 3 RPD's Record, Exhibit 3, National Documentation Package for China (May 3, 2013), item 12.30, RIR ZZZ103741.E, Falun Dafa Association of Canada, May 25, 2011. 4 RPD's Record, Exhibit 3, National Documentation Package for China (May 3, 2013), item 12.31, RIR CHN104187.E, October 2, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB4-00627