TB3-03554

RAD File No. / N° de dossier de la SAR : TB3-03554 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause (a.k.a. XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 5, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 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. If the Refugee Appeal Division (RAD) does not set aside the decision of the RPD and find the Appellant to be a Convention refugee, the Appellant requests that the RAD hold an oral hearing; if the RAD does not order an oral hearing, the Appellant asks that the matter be referred to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of 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 [3] The Appellant alleged before the RPD that he practices a faith known as "Almighty God" or "Eastern Lightning." He began practicing this religion in December of 2011 after he learned of it through a friend. He attended weekly services, which were held in the homes of church members. In April of 2012, the Public Security Bureau (PSB) raided one such service, and the Appellant fled and went into hiding. The PSB arrested four of the Appellant's fellow believers and also interrogated his parents. Three days after the raid, the PSB left a summons for the Appellant at his parents' home. In May, the Appellant learned that he was dismissed from his job on account of his religious activities. He then made arrangements with a smuggler to leave the country, and travelled to Canada via the United States. He arrived in December of 2012 and made a refugee claim about one month later. [4] The Appellant's application for refugee protection was heard on March 18 and March 26, 2013. By a decision and reasons dated April 29, 2013, the RPD rejected the claim. The RPD found that the Appellant was lacking in credibility. Specifically, his testimony about the PSB raid was lacking in detail and appeared rehearsed; he claimed that, despite his alleged offence, an arrest warrant was not issued; his family members were not arrested by the PSB; he appeared in person at the U.S. Consulate to apply for a visa, despite the risk of government surveillance; he obtained an exit permit and left China on his own passport and yet was not detected by the authorities, and he did not know the name of the central figure in his religion. The RPD assigned little or no probative value to a summons purportedly issued by the Chinese authorities, to the Appellant's employment termination letter, and to letters and photographs from religious co-practitioners in Canada. [5] The Appellant submits that the RPD made erroneous credibility findings which were not supported by the evidence and which, in some instances, were speculative. He submits that the RAD should reject the errors made by the RPD and, on the basis of the remaining evidence, accept the Appellant's refugee claim. In the alternative, the Appellant asks for an oral hearing pursuant to Section 110(6) of IRPA, as the evidence in this appeal raises a serious question with respect to the Appellant's credibility, which is central to the RPD decision and, if accepted, would justify allowing or rejecting the Appellant's claim. Finally, and again in the alternative, the Appellant requests that his claim be referred back to the RPD for redetermination. ANALYSIS Nature of the Appeal Proceeding [6] The Appellant alleges that the RPD made errors in its decision. The alleged errors concern credibility and plausibility and are therefore questions of fact. [7] The Appellant argues that this is a de novo proceeding. This is evidenced by the Appellant's statutory right to appeal, the RAD's broad power to substitute its own findings for that of the RPD, and the RAD's jurisdiction to consider appeals on questions of fact, law, and mixed fact and law. [8] In Newton v. Criminal Lawyers Trial Association, 2010 ABCA 399, the Alberta Court of Appeal considered the relationship between administrative tribunals and administrative appellate tribunals. The Court considered whether the appellate tribunal, in that case the Law Enforcement Review Board, properly chose to conduct a hearing de novo when considering an appeal against the decision of the administrative tribunal of first instance, in that case a presiding police officer. That Board considered various provisions of its enabling legislation, including those which gave the Board power to admit new evidence, and concluded that it should embark on a de novo hearing, and that in fact it was compelled to do so absent the agreement of the parties to do otherwise.1 [9] The Court disagreed, finding that neither the fresh-evidence provisions nor other sections of the Board's enabling legislation signalled an intention to require a de novo hearing in each appeal. The RAD notes that relevant sections of IRPA are similar to the legislative provisions considered in Newton. Section 110(3) of IRPA provides that: Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal.... [10] Subsection (4) states that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] Subsection (6) gives the Refugee Appeal Division the discretion to 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. [12] IRPA neither states nor signals that an appeal to RAD is a de novo hearing of the Appellant's refugee claim, and in fact the provisions set out above indicate otherwise. An Appellant bringing her case to the RAD has a restricted right to bring new evidence.2 The RAD is required to proceed without a hearing,3 unless there is new evidence which meets the requirements set out in Section 110(6). The effect of the restrictions on new evidence would be a de novo hearing where the Appellant is limited in her ability to present evidence to support her claim, despite having gained a new hearing of that claim. The RAD also notes that, in situations where it holds an oral hearing, the Rules require that a notice be prepared setting out the issues that will be raised at the hearing. The hearing is restricted to matters relating to those issues, an approach not at all consistent with a de novo hearing.4 [13] Having considered the Court's reasoning in Newton, as well a plain reading of IRPA, the RAD finds that this appeal cannot result in a de novo hearing of the Appellant's refugee claim. Standard of Review [14] What is the appropriate standard of review to be applied in this appeal, where the appellate tribunal is to consider alleged factual errors made by the tribunal of first instance? The Appellant argues that the RAD should show little, if any, deference to the decision of the RPD. The RPD is not a specialized tribunal in relation to the RAD, as both Divisions belong to the same Tribunal. Further, an appeal to the RAD is a full appeal in that it is not limited to a review of the legality of the RPD decision. Finally, the RAD has broad power to substitute its own findings for that of the RPD, suggesting that it has the ability and expertise to determine the very same questions there were before the RPD. [15] In the Appellant's submission, the standard of review in this matter is one of correctness. [16] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [17] In Dunsmuir,5 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,6 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [18] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:7 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [19] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation. The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.8 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [20] The nature of the question in issue. In this appeal, the question in issue is one of fact, which favours a deferential standard of review.9 [21] The interpretation of the statute as a whole. The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [22] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.10 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [23] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [24] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [25] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [26] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal. Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,11 and each can take notice of information and opinion within its specialized knowledge.12 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,13 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD proceeding.14 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,15 other than in situations where the RAD holds an oral hearing and there has opportunity to consider evidence first-hand. [27] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance. In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.16 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [28] When the Newton factors are applied to this appeal, they provide more clarity than does Dunsmuir in respect to the appropriate standard of review. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question in issue is one of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.17 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [29] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review in this appeal is one of reasonableness. [30] Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in regard to the facts and the law.18 The RPD's Findings [31] The Appellant argues that the RPD's credibility findings were not supported by the evidence and, in some instances, were speculative. Specifically: [32] PSB raid. The RPD questioned the Appellant about the circumstances of the raid allegedly conducted by the PSB on XXXX XXXX, 2012. Having asked the Appellant to describe his escape from the house being raided, the RPD concluded that his response was "vague and lacking in details."19 The RPD went on to state: The panel attempted to prompt the claimant in regards to who and what he saw or heard during the raid and the aftermath, however the claimant stated he did not see or hear anyone or anything. The panel finds it unreasonable that the claimant was unable to describe anything other than he walked through a vegetable field and saw a taxi. The panel would expect that a raid to the claimant's underground church would be a significant event upon which he bases his claim and it would have evoked panic, fear and chaos yet the claimant spoke of the event without emotion, causing the panel to surmise that his version of the raid appeared rehearsed.20 [33] The RPD then made a negative credibility finding in respect to the testimony about the raid. [34] The Appellant argues that there was no reason for the RPD to disbelieve his testimony about this event. In the panic and chaos of such a raid, it is plausible and understandable that he did not hear or see anything; people react in different ways to stressful and upsetting circumstances, and perhaps the Appellant reacted by blocking out his surroundings. The Appellant further submits that the RPD unreasonably made a negative finding based on his dispassionate account of the raid. [35] It is difficult for the RAD to understand a credibility finding based on the RPD member's assessment of the Appellant's emotional state while testifying. It is not clear to the RAD whether the RPD considered the Appellant's cultural background or religious beliefs and their impact upon his emotional state or willingness to show emotions. Nor is it clear precisely which emotions the Appellant was expected to display, and why. As the Federal Court stated in review of a similar RPD finding in another refugee claim: It is not immediately obvious why one should expect the applicant to become emotional when describing the beating, so long after the event. Individuals vary greatly as to the degree of emotion they show when describing such events - why is she assumed to be a person who would react emotionally?21 [36] In this case, the Appellant alleged that he fled when the authorities raided his religious service. While this was a relatively recent event, the Appellant was neither apprehended nor harmed. Had the Appellant displayed significant emotion while providing testimony about other matters, it might have been reasonable to draw a negative inference from his lack of emotion here. However, the RPD does not provide such reasoning in support of its conclusion, nor does it indicate whether it considered other factors in assessing the Appellant's apparent lack of emotion. [37] The RPD's negative credibility finding based on the Appellant's perceived lack of emotion while testifying about this event was not justifiable, transparent, or intelligible, and the RAD therefore finds it to be unreasonable. [38] This does not, however, dispose of the credibility issue in respect to the raid, because the RPD also found the Appellant's testimony to be vague and lacking in detail. The RAD has reviewed the Appellant's testimony about his escape from the raid and agrees that it raises credibility concerns. He did not see any of the officers conducting the raid. He fled with a group of ten people and did not know where the others went. He initially testified that they all escaped, then conceded that he was assuming they escaped, and then claimed that he later learned some were arrested. He provided little detail about his own escape, other than that he left by the back door, walked through a vegetable field to a road, and caught a taxi there. [39] While the Appellant argues in this appeal that he may have been blocking out his surroundings due to the stress of the situation, it would have been speculative for the RPD to reach such a conclusion, given that the Appellant did not make this claim in his hearing and did not provide medical evidence to establish that he suffers from any condition that might impair his ability to remember or testify. [40] While it was unreasonable for the RPD to support its credibility finding on the Appellant's emotional state while testifying about the raid, the RPD's credibility finding in respect to the substance of that testimony falls within the range of possible, acceptable outcomes defensible in fact and in law and is therefore reasonable. [41] Arrest warrant. The RPD noted that there is mixed objective evidence about the issuance of arrest warrants in China. While the evidence establishes that such documents are indeed issued, there is wide administrative discretion throughout the country, and in some areas officials do not conform to national laws and regulations. After acknowledging this evidence, the RPD went on to conclude that the PSB would have issued a warrant for the Appellant's arrest, as other members of his group had been arrested, and the PSB was clearly seeking the Appellant as well. The RPD made a negative credibility finding based on the lack of such a warrant. Although the RPD discussed the issue as whether it was "reasonable to expect" a warrant to be issued,22 the conclusion is, in the RAD's view, an implausibility finding. [42] The Appellant points the RAD to objective evidence, which was before the RPD, indicating that the issuance of arrest warrants in China is rare, and that there is great variability in law enforcement procedures in China. The Appellant argues that the PSB's repeated visits to his family and the detention of his fellow believers are not good reason for the RPD to conclude that the PSB should have issued an arrest warrant, noting that the Federal Court has rejected this reasoning: The documentary evidence also stated the procedures followed by the PSB vary from region to region; and, in most instances, routine procedures or rules give way to norms of the region. Therefore, if the norm in the Applicant's region is for the PSB not to leave a summons/warrant for anyone other than the person who is named, then presumably that norm is followed regardless of how many times the PSB visits the Applicant's home or how many people in the Applicant's house church would have been arrested and sentenced.23 [43] Given the objective evidence, which was cited by the RPD, it is not clear from the RPD's reasons how it reached the conclusion that the PSB should have issued an arrest warrant. The Federal Court has stressed the importance of clearly-articulated reasons in cases where a non-credibility finding is based on perceived implausibilities.24 If the RPD had evidence to distinguish the Appellant's circumstances from those situations where the Chinese authorities do not follow the law in respect to warrants, the RPD should have made that distinction clear in its reasons. [44] The RAD finds that the RPD's implausibility finding regarding the lack of an arrest warrant was not reasonable when considered in light of the objective evidence. [45] Treatment of family members by the PSB. After noting that the PSB allegedly threatened the Appellant's parents with arrest if he did not turn himself in, but that they were not in fact arrested, and that his brother and sister were "not affected" either, the RPD went on to say: Based on his response the panel must question the activities of the PSB who have the reputation of being ruthless. The fact that the claimant's parents were not arrested or his siblings sought out is not consistent with documentary evidence which notes that family members of unregistered religious individuals were targeted for arbitrary arrest, detention, and harassment.25 The RPD then found that the Appellant's testimony about threats to his parents was not credible. [46] The Appellant argues that this finding was mere conjecture, as there was no evidentiary basis for findings on how the PSB should or would have acted in the circumstances. [47] The Appellant's argument is not entirely accurate, as the RPD did base its conclusion on documentary evidence about the treatment of family members of unregistered religious individuals. The evidence relied reports that "family members of unregistered religious individuals were targeted for arbitrary arrest, detention and harassment."26 [48] In the RAD's view, the real difficulty with the RPD finding on this matter is that it is not supported by the evidence cited. The fact that the authorities targeted family members does not mean that every family member of every unregistered religious individual was arrested in every instance. In its decision, the RPD questioned the activities of the PSB; the Appellant is in no position to speak for the PSB or explain its choices. The evidence establishes that, during a particular period of time, there were reports that family members of unregistered religious individuals were targeted. In fact, the Appellant's parents did allegedly suffer a form of harassment, in repeated visits from the PSB. [49] The evidence does not support the RPD's finding that, as the Appellant's parents were not arrested, his allegation of threats against them is not credible. The RPD's negative credibility finding in respect to the alleged threats is not justifiable, transparent, and intelligible, and is therefore not reasonable. [50] Exit from China and travel to Canada. The RPD found that the Appellant's claim to have left China on his own passport, without detection, undermined his credibility. It also drew a negative inference from the fact that the Appellant applied for a U.S. visa by personally attending at the American Consulate, thus exposing himself to government surveillance. In the RPD's view, it would have been less of a risk for the Appellant to apply for a Canadian visa by mail, since he wanted to go to Canada anyway. The RPD noted objective evidence about an extensive government computer network which allows Chinese authorities to identify wanted individuals. The RPD considered the Appellant's explanation-that he retained a "snakehead" who advised him to obtain the visa, who had bribed the authorities, and who accompanied the Appellant through the various checkpoints-and rejected it as implausible. The RPD also found that if the Appellant was indeed wanted by the PSB, he would not have been issued an exit permit. [51] The Appellant argues that the RPD erred in rejecting his account of his exit from China. As the Appellant paid a significant sum of money to the smuggler, it is reasonable to assume that the snakehead had means of avoiding detection by officials. The Appellant points to the decision of the Federal Court in Zhang,27 where the Court rejected the RPD's conclusion that a smuggler would have needed to bribe many corrupt officials, noting that a single well-placed corrupt official might be sufficient. The Court also noted objective evidence before that RPD panel about corrupt Chinese officials participating in smuggling operations. [52] The RAD notes that similar, if not identical, evidence was before the RPD in the Appellant's hearing: Document vendors are well connected and able to produce documents to facilitate the transportation of immigrants. Some documents are authentic, obtained through official or unofficial channels, while others are fraudulent. .... Corrupt public officials are the authorities in China and many transit countries who are paid to aid illegal Chinese immigrants. Some corrupt government officials act not only as facilitators but also as core members or partners of a smuggling organization. Subjects who belonged to large smuggling groups often indicated that local Chinese officials headed their groups.28 [53] It is not clear whether the RPD considered this evidence in reaching its conclusion about the implausibility of the Appellant travelling on his own passport, or concluded that, in the Appellant's case, this objective evidence did not or could not apply. This evidence relates directly to the RPD's plausibility finding, and the RPD did not make clear how it reached its conclusion in spite of this evidence. Further, the RPD speculated on how a snakehead might think and act, apparently assuming that the smuggler would not be careless, and would direct the Appellant to the lowest-risk option. The basis for such speculation is not clear in the RPD reasons. [54] The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.29 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.30 [55] The objective evidence cited above suggests that it is indeed plausible that the Appellant could have left China as he alleged, with the assistance of a smuggler who bribed corrupt officials. Before the RPD could find that the Appellant's method of departure from the country was implausible, it was obliged to explain why the relevant objective evidence did not apply to the Appellant's situation. On this subject, the RPD's reasoning is not transparent, and its implausibility finding regarding the Appellant's exit from China is therefore unreasonable. [56] Genuineness of religious beliefs. The RPD considered whether the Appellant is a follower of the Almighty God or Eastern Lightning religion. The Appellant was able to answer basic questions about the faith but was unable to provide the name of the "female Jesus" who is central to the religion and whom objective evidence names as "Lightning Deng" or "Deng." As the Appellant had allegedly practiced the faith for some time, and as this subject matter is a basic element of the religion's belief, the RPD made a negative credibility finding and concluded that the Appellant was never a member of the religion. Given this finding, the RPD also rejected letters from two Almighty God practitioners in Canada, as well as photographs of the Appellant practicing his religion in this country.31 [57] The Appellant argues that the RPD erred in finding he is not a genuine practitioner of the Almighty God religion. The RPD acknowledged that there is very little information available about the Appellant's religion, and also that the Appellant demonstrated a basic knowledge of his professed faith. In the Appellant's submission, the RPD was unreasonable in making a credibility finding based on one incorrect answer. The Appellant points out that the Federal Court has cautioned the RPD against holding refugee claimants to an unrealistically high standard of religious knowledge.32 The Appellant argues that the RPD engaged in an overly stringent and microscopic examination of his religious knowledge. [58] The RAD has reviewed the Appellant's testimony about his religious beliefs. He did indeed provide basic information about the religion, which is to be expected given the basis of his refugee claim. Although the religion holds that Jesus Christ has returned as a woman living in China, he was unable to give the name of the woman. In the RAD's view, this is hardly a trivial subject. The group aggressively recruits followers. Members of Almighty God reportedly believe that salvation is found through this female Christ, and those who do not accept her will experience a terrible death.33 The Appellant submitted evidence to the RPD which claims that he has participated in "spreading Gospel activities." It is hard to imagine how he could do so without knowing the name of a central figure of the faith. The RAD finds that the RPD's finding on the genuineness of the Appellant's religious beliefs was neither trivial nor microscopic, but was instead reasonable. [59] In light of its finding about the Appellant's faith, the RPD assigned no probative value to two supporting letters from alleged Almighty God practitioners in Canada, or to photographs of the Appellant purportedly practicing his religion. The RAD notes that the two "confirmation letters" contain identical wording, other than the name of each author. Neither letter writer testified at the hearing, although they both apparently live in the Toronto area, and thus the RPD member did not hear or question their evidence. The photographs do little, if anything, to support the Appellant's refugee claim, as such photos are easily staged and manipulated. Given these factors, in addition to the significant deficiency in the Appellant's oral testimony about his religion, the RAD finds that the RPD reasonably decided to give no weight to the letters and photographs. [60] Summons and employment termination letter. Having considered both the Appellant's credibility problems and objective evidence about the availability of fraudulent documents in China, the RPD gave little weight to the summons and the termination letter, finding that they were acquired to bolster the Appellant's refugee claim.34 [61] The Appellant argues that the RPD relied upon a Response to Information Request (RIR) which addresses the issue of fraudulent documents in Fujian and Guangdong provinces, and the Appellant is from neither province. Further, the Appellant points out that the RIR specifies that no information is available in respect of whether fraudulent summons are manufactured, procured, or distributed. [62] The RAD disagrees with the Appellant's characterization of the objective evidence. While the RIR in question does refer to the two provinces in its title, it is clear that much of the document, including the portion relied upon by the RPD, deals with the availability of fraudulent documents in China, not only in specific provinces. While the RIR does indicate that no information was found specific to the subject of fraudulent summons, it is also clear that "just about any document can be forged in China," with one U.S. official station in China indicating that documents are assumed to be fraudulent unless proven otherwise.35 [63] The fact that fraudulent documents are widely available in China is not, by itself, sufficient reason to reject the Appellant's documents as false. However, where the RPD finds a refugee claimant to be lacking in credibility, and where it has evidence that fraudulent documents are widely available in the claimant's country, it is open to the RPD to assign little or no probative value to the documents.36 [64] In this case, the RPD made various credibility findings which the RAD has found to be unreasonable. However, it is important to note that significant credibility findings survive, as will be discussed below. Given these reasonable credibility concerns, and in the context of objective evidence about fraudulent Chinese documents, the RPD's decision to assign little or no weight to the summons and termination letter was justifiable, transparent, and intelligible, and falls with the range of possible, acceptable outcomes defensible in fact and law. The RPD's Decision [65] The RAD has found that the RPD made a number of unreasonable credibility findings in rejecting the Appellant's refugee claim. Are these sufficient to justify setting aside the decision? After removing the unreasonable findings, the RAD has considered the findings that remain. The Appellant's evidence about his purported faith was fatally flawed, in that he could not name the central figure in his religion. His allegations about the alleged PSB raid on his religious group were also lacking in credibility. The RPD also found-and the Appellant did not challenge in this appeal-credibility problems with the Appellant's vague evidence about the most recent time the PSB came looking for him.37 To sum up, the Appellant alleges a fear of persecution based on his religion, but cannot name a key figure; he claims that the PSB raided a meeting of this group, but failed to provide credible or trustworthy evidence about that raid; he alleges that the PSB continues to seek him, but his evidence about recent such activity was also lacking in credibility. The RAD notes that the Appellant did not submit any medical evidence to the RPD or the RAD to indicate that he suffers from any condition that might impair his ability to testify or to recall facts. [66] Although the RPD made some unreasonable credibility findings, as set out above, the RAD finds that the RPD's decision to reject the Appellant's refugee claim falls within the range of possible, acceptable outcomes defensible in regard to the facts and the law, given those credibility findings that remain. Disposition [67] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. Application for an Oral Hearing [68] The Appellant argues that if the RAD does not find the Appellant to be a Convention refugee, it should hold an oral hearing pursuant to Section 110(6) of the IRPA. [69] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [70] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [71] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [72] The Appellant has submitted no new evidence in support of her appeal. As such, the RAD must proceed without a hearing in her appeal, and her application for an oral hearing is denied. CONCLUSION [73] For the reasons given above, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, and dismisses this appeal. (signed) "Edward Bosveld" Edward Bosveld July 5, 2013 Date 1 Newton v. Criminal Lawyers Trial Association, 2010 ABCA 399, para. 22. 2 IRPA, Section 110(4). 3 IRPA, Section 110(3). 4 Refugee Appeal Division Rules, Rules 56(1) and 57(1). 5 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 6 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 7 Newton, para. 43. 8 IRPA, Sections 96 and 97. 9 Khosa, para. 89. 10 IRPA, Section 3(2)(a). 11 IRPA, Sections 170(g) and 171(a.2). 12 IRPA, Sections 170(i) and 171 (b). 13 IRPA, Section 170(b). 14 IRPA, Section 110(3). 15 Khosa, para. 89. 16 Newton, para. 80. 17 Khosa, para. 89. 18 Dunsmuir, para. 47. 19 RPD Reasons, Para. 13. 20 RPD Reasons, Para. 14. 21 Shaker, Tahereh v. M.C.I. (F.C.T.D., no. IMM-3448-98), Reed, June 30, 1999, para. 10. 22 RPD Reasons, paras. 19 and 21. 23 Liang v. Canada (M.C.I.), 2011 FC 65. 24 Leung, Shuk-Shuen v. M.E.I (F.C.T.D., no. A-1162-92), Jerome, May 20, 1994. 25 RPD Reasons, para. 23. 26 RPD Record, Exhibit 3, National Documentation Package, item 2.3, U.K. Country of Origin Report, para. 18.7. 27 Zhang v. Canada (M.C.I.), 2008 FC 533. 28 RPD Record, Exhibit 3, National Documentation Package for China (31 October 2012), Item 2.3, U.K. Home Office, Country of Original Information Report: China, 2011, Paragraph 29.13. 29 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037 at 19. 30 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 31 RPD Reasons, paras. 38-49. 32 Huang v. Canada (M.C.I.), 2012 FC 1002, paras. 10-17. 33 RPD Record, p. 91, RIR CHN104304.E. 34 RPD Reasons, paras. 26-27. 35 RPD Record, Exhibit 3, National Documentation Package, Item 3.17, RIR CHN103134.E. 36 Nasim, Babar v. M.C.I. (F.C.T.D., no. IMM-6455-00), Trembly-Lamer, November 2, 2001; 2001 FCT 1199, para.17. 37 RPD Reasons, paras. 16-17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-03554