TB4-07244

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 : TB4-07244 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 20, 2014 Date de la décision Panel David Lowe 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 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) set aside the decision of the RPD and find him to be Convention refugee, or in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleged before the RPD that he is a practitioner of Falun Gong and is wanted by the Public Security Bureau (PSB) in China for illegal activities as a Falun Gong member. The Appellant was practicing Falun Gong since XXXX XXXX XXXX of 2013 approximately once per week and eventually with a group of other practitioners. On or about XXXX XXXX, 2014, the group with whom the Appellant was practicing was raided by the PSB resulting in the arrest of at least two members, XXXX XXXX XXXX and XXXX XXXX XXXX On XXXX XXXX, 2014, members of the PSB attended the home of the Appellant, looking for him in connection with the Falun Gong raid. A summons to appear at the offices of the State security for the Appellant was left with his wife. The Appellant hid at the home of a relative until he was able to leave China with the help of a smuggler. [4] The Appellant's application for refugee protection was heard on July 2, 2014. The RPD handed down its decision and reasons on July 16, 2014. The determination was that the Appellant was neither a Convention refugee nor a person in need of protection. The claim was rejected. The RPD found that the claimant was not credible on determinative issues including the basis of the claim that the Appellant was a practitioner of Falun Gong. [5] The Appellant submits that the RPD: 1. Erred by misconstruing the nature of the Basis of Claim (BOC) form; 2. Erred in its analysis of the Appellant's ability to obtain a passport; 3. Erred in its review of the Appellant's subpoena; 4. Was unreasonable in its analysis of the Appellant's knowledge of Falun Gong; and 5. Was unreasonable in its analysis of the sur place claim. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? [7] 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. [8] 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. [9] In Iyamuremye1 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....2 [10] 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."3 [11] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.4 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."5 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. [12] In Malhotra,6 issued after Alvarez, 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. [13] More recently, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.7 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 a 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.8 [14] 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. [15] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." The RAD will therefore 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. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [16] The Appellant argues that the RPD erred by misconstruing the nature of the BOC. The Appellant submits that the panel misconstrued the nature and the purpose of the BOC and drew a series of erroneous credibility determinations from what the panel perceived as a lack of amendments to the BOC. Specifically, during testimony, the Appellant testified that the PSB had attended his home in XXXX XXXX XXXX and again in XXXX looking for him. The panel noted that neither of these visits was mentioned in the BOC. The Appellant submits that the BOC does not require an Applicant to continuously update the narrative with ongoing developments (both of these visits occurred after the BOC was submitted to the Board). The Appellant submits that the BOC is designed for the Applicant to provide his BOC narrative as it stands at the time it is completed. The Appellant also notes that in the BOC, he specifically noted that he could not anticipate what additional facts the panel may be interested in while also noting that he would be prepared to provide such facts (as the panel requests). The panel drew a negative credibility determination based on the Applicant's failure to update his BOC. [17] The panel also drew a negative credibility finding when testimony indicated that the PSB had visited the Appellant's wife's place of employment sometime in very late XXXX of 2014. This had not been disclosed on the BOC. The Appellant gave an explanation that he had simply forgotten to put this item in his BOC. The panel rejected the explanation because it was perceived by the panel to be material to the claim. The panel went on to conclude that the visit to the workplace of the Appellant's wife did not in fact occur and that it was made up so to embellish the claim. [18] On this issue, I agree with the Appellant. Regarding the two visits to the Appellant's home which occurred in XXXX XXXX XXXX and XXXX, these obviously occurred after the BOC was submitted. It is true that amendments could have been made and disclosed in advance to the Board however; would that have changed the decision of the panel with regards to the veracity of the amendments? The RAD asks itself, would it be any more likely that the alleged visits actually happened if the Board had received an amendment in XXXX XXXX XXXX, another in XXXX XXXX XXXX and so on than it is by hearing the evidence on XXXX XXXX, 2014? The RAD finds that it would not be. When the time frame between submitting a BOC form and being at a hearing is such a relatively short time, one must be cautious in fixing short time frames to tasks which may not be completed as quickly as one would wish for. The last visit to the Appellant's home, according to his testimony which the RAD has listened to, was XXXX XXXX, 2014. When one considers weekends and holidays between XXXX XXXX and XXXX XXXX, one is left with perhaps fourteen days in which to get the information to counsel, have counsel properly prepare it and submit it to the Board in time for the Board to receive it within the "ten day prior to hearing" rule.. This I find to be unreasonable. I find that the Appellant's explanation for the omission of this information from his narrative to be reasonable and credible. [19] Regarding the visit to the Appellant's wife's place of employment, the Appellant testified that the visit occurred in XXXX of 2014 and he found out about it on or about the XXXX XXXX XXXX, 2014 (while he was already in Canada and the day before his BOC was received at the Board). The Appellant testified that he forgot about it at the time. [20] The panel rejected this explanation as the panel believed that this was a material omission and on that basis found that the visit to the wife's place of employment did not happen and was made up in order to embellish the claim. [21] The RAD respectfully disagrees with the RPD on this issue of credibility. Although the omission of a material fact in a narrative may be fatal in some circumstances, I find that this is not such a circumstance. When one considers the stress under which a refugee claimant submits his or her claim, with extremely shortened time frames in which to work it becomes less likely that the Board will receive all of the information in the correct format that it wants or needs due only to these time constraints and the pressures they cause. Is it fair to expect the Appellant to add these details to the BOC after it has been submitted? Why could he not rely on the hearing to add additional information which he became aware of after the BOC had been filed? There is nothing in the Rules obligating a claimant (the Appellant) to amend a BOC with additional information. The Appellant submitted his BOC supported by documentary evidence, including a copy of the PSB summons and notated the BOC that he was willing and able to provide further details as requested at the hearing. The Appellant had just traveled over 6,000 miles to escape what he perceived (if found to be credible) to be persecution. . The RAD finds that this omission is not fatal to the claim and the RAD does not infer any negative credibility from it. [22] In regards to the Appellant being able to obtain his valid passport with an outstanding criminal summons/subpoena in his name, even if the smuggler had someone else submit the passport for him, the panel concluded that, on a balance of probabilities unlikely and from that, the Appellant is not wanted by the PSB. The panel dismisses just about everything including the practice of Falun Gong, the PSB raid, the Appellant's hiding, the veracity of the summons and the allegation that the PSB is still looking for the Appellant. The panel did acknowledge that corruption is a problem in China on the one hand, but dismisses the allegation that the smuggler was able to get a passport issued for the Appellant using "connections," as alleged by the Appellant. The RAD finds that the panel erred in this credibility finding. The panel appears to be speculating on the issue of whether government corruption is happening or is not happening when the panel writes, "[t]he panel has considered the documentary evidence and acknowledges that corruption is a problem in China,"9 but then rejects outright the possibility of the smuggler using a connection to obtain a passport without providing some documentary support for that rejection. [23] The panel correctly notes the Chinese program known as the Golden Shield, which is a system of monitoring peoples' movements in and out of China. The system involves police and state agencies from the county level on to the national level with a data base computer system to track individuals such as those with outstanding criminal warrants, summons and subpoenas and to give access to that information to police and other authorities all over China. The information is shared with the authorities' at all International airports so that those leaving the country will be checked against the database for persons wanted by the authorities. This system is a good and strong system and security has been greatly increased since its inception in the early part of the century largely because of the Beijing Olympics in 2008, closing many loopholes which had existed previously. The RAD finds that the possibility to use a corrupt connection at the airport is certainly one which exists; however, on a balance of probabilities, if someone was wanted by the PSB and the PSB locally had input the information into the Golden Shield system, a person would not get out of China undetected. The problem the RAD has is determining whether or not the PSB in XXXX XXXX (where the summons was issued) did input the information into the national database. Being a city of over XXXX XXXX XXXX XXXX people, the RAD would think that the professionalism of the police would be of such a level that such data would be input, on a balance of probabilities. The RAD finds that the Golden Shield system would on a balance of probabilities, under normal circumstances, prevent a person who was wanted by the PSB from leaving China on his or her own genuine documents. However, documents at the Board10clearly indicate that corruption of state officials including the security services is endemic. This fact lends credence to the plausibility of a person using a corrupt official to help a wanted person to leave the country undetected. I find that the RPD did not consider all of the evidence available on this matter. [24] The RPD rejected as not credible, a piece of evidence which the RAD believes is important to consider more closely. The RPD appears to have rejected the PSB summons, for no other reason that it had found the claim to be not credible and therefore discredited the evidence disclosed. The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.11 However, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.12 In this case the panel simply discarded the evidence. In paragraph 24 of the Reasons and Decision, the panel writes that it "accords little probative weight to the 'Chunpiao' [summons]"13 given the Appellant's overall lack of credibility, as set out earlier. The panel further gives it little weight due to the prevalence of the availability of fraudulent documents in China. The Appellant submits that the panel based her credibility findings on her belief that it was not plausible that a passport could be obtained in China if a summons was outstanding for the applicant for the passport, and consequently discounted the probative value of the summons without serious consideration. [25] The Appellant further submits that the panel's dismissal of the Chunpiao is unreasonable and cites Lin,14 which held that although fraudulent documents are widely available in China, this does not mean that every document that comes out of China is necessarily fraudulent. I find that the panel failed to properly assess the Chunpiao on its own merits and instead discarded it as having little probative weight with no substantive reasoning given. This document is material to the claim and therefore must be given proper scrutiny. The RPD has provided insufficient reasons for disbelieving the validity of the summons. The RAD holds that to be true in regards to the Appellant's evidence as well. The RAD finds that the summons is, on a balance of probabilities, genuine and therefore accepts that the PSB are in fact looking for the Appellant. [26] This entire appeal is based on whether or not the Appellant is a genuine practitioner of Falun Gong. The panel determined that he is not a genuine practitioner of Falun Gong and writes: "While it is difficult to make a judgment regarding the genuineness of a person's Falun Gong practice, it is necessary in this case. In doing so the panel considered the totality of the evidence."15 The panel questioned that Appellant on his knowledge of Falun Gong. The panel does not write with regards to the answer to questions; however, does write with regards to the recital requested by the panel of the verses used with the exercises. In listening to the recording of the hearing, the RAD notes that there was one minor discrepancy when the Appellant was asked by the panel about the number of exercises and verses to be done in Falun Gong. According to the interpreter, the Appellant first replied to the question that there were three exercises and five verses. When the panel put the question back to the Appellant, the Appellant calmly testified that there were five exercises and five verses. The panel asked for an explanation as to why he had said differently the first time and the Appellant, in a very calm, non-aggressive tone simply replied that he had said five and five both times. The only other issue the RAD heard and which was written by the panel was the issue that the Appellant had difficulty reciting one of the verses applicable to exercise four. Upon request by the panel, the Appellant began reciting the verses which a practitioner recites while doing the exercises. Each exercise has its own specific verse. The Appellant was able to recite all perfectly except that of exercise four. On exercise four, the Appellant stumbled and forgot part of it. Not remembering the actual verse "wording" the Appellant recites the "features" of the exercise instead. The Appellant explained that he was nervous and had been experiencing sleep issues for the previous few nights which adversely affected his memory. The panel rejected this explanation based on the facts that the Appellant had been doing these exercises since XXXX of 2013. The panel further noted that the Appellant did not disclose any medical or psychological evidence to establish that he suffers from any condition or disorder that might impair his ability to testify or to remember facts. The Appellant submits that it is reasonable that any person who has been suffering from a lack of sleep and who is being put into the nervous circumstance of having his fate decided by the Board Member may be unable to recall every single verse of the Falun Gong exercises. The RAD agrees with the Appellant. With all due respect to the panel, it is unreasonable to expect any person subject to the pressures of a hearing which will determine the outcome of one's life to be perfect in remembering every detail. In listening to the recording of this hearing, the RAD finds that the claimant did very well, answering the vast majority of the questions put to him in a direct and consistent manner with only minor issues which, in the RAD's opinion do not support a negative credibility finding. [27] The Appellant disclosed letters and photos from fellow practitioners of the XXXX XXXX Falun Gong group. The panel rejected the letters or gives them little probative value because they are not notarized and not accompanied by a photo of the authors. A refugee claimant is expected to provide documents for the purpose of establishing his refugee claim.16 It seems to follow logically that such documents will be, by their very nature, self-serving-the claimant is providing them for the purpose of proving that he is a Convention refugee or a person in need of protection. Such documents may not be notarized and may not be accompanied by the level of proof required in a criminal trial procedure. The RAD cannot understand the RPD's logic here -why do self-serving documents have little probative value? [28] The Federal Court has repeatedly cautioned the RPD against this very approach, observing that all refugee claimants have an interest in the outcome of their hearing17 and that to discount evidence on this basis goes directly against the presumption of truthfulness in Maldonado.18 This type of reasoning, if permitted, would always defeat a claimant's evidence.19 [29] Given the fact that the RAD has decided that the summons is genuine and that genuine document indicates clearly that the PSB are looking for this Appellant, while considering the totality of the evidence provided including oral testimony, the RAD finds that he is a true and genuine practitioner of Falun Gong [30] The RAD must now consider whether or not the Appellant's fear of persecution as a practitioner of Falun Gong, in China, is well founded. The RAD has studied the documents before it20and notes that the Chinese authorities have reportedly pursued nationwide sanctions against Falun Gong practitioners since the 1999 ban of Falun Gong in China. Amnesty International (AI) describes state actions against the Falun Gong as "a long-term campaign of intimidation and persecution" (AI 15 Dec. 2010). Similarly, the United States Commission on International Religious Freedom (USCIRF) states that since the ban, the Chinese government has carried out an "unprecedented campaign" against practitioners, including detaining a large number of believers and "abusing" them in detention (US May 2011, 130). Freedom House indicates that Falun Gong adherents in China "face harassment, imprisonment, and torture." In an open letter to the Secretary-General of the United Nations (UN) on the 10-year anniversary of the "crackdown" against Falun Gong practitioners in China, the Vice- President of the European Union's (EU) parliament, Edward McMillan-Scott, characterized the campaign against Falun Gong as "brutal and systematic persecution" and urged an inquiry into "the systemic process of imprisonment without trial, escalating torture, and the murder of thousands of innocent people under torture." [31] According to the US Department of State's International Religious Freedom Report 2007, Falun Gong has reported that its members "have been subject to excessive force, abuse, rape, detention, and torture, and that some of its members, including children, have died in custody" (US 14 Sept. 2007). In November 2005, the UN Committee on the Rights of the Child published a report in which it notes its concern "at reports that children of families practicing their religion, notably the Falun Gong, are subject to harassment, threats and other negative actions, including re-education through labour." [32] The RAD finds that the evidence quoted above amply shows that practitioners of Falun Gong are persecuted in China and therefore finds that the Appellant's fears are well founded. Disposition [33] The RAD has found that the RPD erred in its decision by not properly assessing material evidence disclosed (summons) on its own merit and by misconstruing minor and normal issues of memory failure as determinative in reaching a finding of a lack of credibility as to the identity of the Appellant as a Falun Gong practitioner. The RPD decision cannot stand. CONCLUSION [34] Pursuant to Section 111(1) (b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe November 20, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Iyamuremye, para. 2. 3 Iyamuremye, para. 3. 4 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. 5 Alvarez, para. 33. 6 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768. 7 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 8 Huruglica, para. 45. 9 Appellant's Record, RPD's Reasons and Decision, para. 17. 10 RPD's Record, NDP item 7.1 and 7.4. 11 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 12 Nasufi v. Canada (Citizenship and Immigration) 2011 FC 586; Khan v Canada (Minister of Citizenship and Immigration), 2003 FC 1076; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425. 13 Appellant's Record, RPD's Reasons and Decision, para. 24. 14 Lin v. Canada (Minister of Citizenship and Immigration) 2012 CarswellNat 267 FC 157 (F.C.A.), at para. 55. 15 Appellant's Record, RPD's Reasons and Decision, para. 26. 16 Refugee Protection Division Rules, Section 11. 17 Nilam v Canada (Minister of Citizenship and Immigration), 2008 FC 689. 18 Maldonado. 19 Coitinho, Jorge Alberto Rodriguez v. M.C.I. (F.C., no. IMM-5710-02), Snider, July 26, 2004, 2004 FC 1037. 20 RPD's Record, NDP, items 12.28 and 12.29. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07244