TB4-01733

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 : TB4-01733 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 Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 7, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Petar Lulic 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 (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She did not submit new evidence in support of her appeal but does request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that she was introduced to the practice of Falun Gong by a friend. In XXXX 2013, her Falun Gong group was raided by members of the Public Security Bureau (PSB), however, the Appellant was able to escape and go into hiding. While in hiding, she learned that members of her group had been arrested and that the PSB attended her home to arrest her. The PSB left a summons for her arrest with her parents. Fearing she would be arrested, she used the services of a smuggler to leave China. The Appellant traveled to the USA on XXXX XXXX, 2013. She traveled to Canada on XXXX XXXX and made a refugee claim on October 8, 2013. [4] Her application for refugee protection was heard on February 4, 2014. In a decision of February 5, 2014, the RPD rejected the Appellant's claim finding that she is not a Falun Gong Practitioner. [5] The Appellant submits that the RPD decision is flawed because: (a) The RPD engaged in microscopic analysis of the peripheral elements of the Appellant's evidence rendering its findings on credibility unreasonable; (b) The RPD breached procedural fairness in its analysis of the Appellant's summons; (c) The RPD ignored country documents, evidence and testimony that points to a contradictory conclusion on key issues; and (d) The RPD failed to address core elements of the claim such as the key events which led to the Applicant starting Falun Gong and events that led to the police raid as well as her practice of Falun Gong in Canada. Standard of Review [6] 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. The Appellant submits that the RPD has made errors of law, mixed fact and law and errors of fact in coming to its determination. The Appellant submits that the appropriate standard of review for most decisions involving an exercise of discretion for questions of mixed fact and law is reasonableness. The standard of review for questions of law and natural justice correctness. The RAD agrees with counsel in this regard. [7] In Dunsmuir,1 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [8] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellate administrative tribunal, the Newton factors are highly relevant. [9] These factors are: 1. the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; 2. the nature of the question in issue; 3. the interpretation of the statute as a whole; 4. the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; 5. the need to limit the number, length and cost of appeals; 6. preserving the economy and integrity of the proceedings in the tribunal of first instance; and 7. other factors that are relevant in the particular context. [10] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [11] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits; while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [12] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.4 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing6 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [13] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.8 [14] It is the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, given that the RPD has held a hearing on the totality of the evidence, and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD will be, in most cases, in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".9 [15] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [16] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearing in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [17] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [18] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.10 [19] As stated, errors of law will be assessed on a standard of correctness and errors of fact will be assessed on a standard of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.1" ANALYSIS OF THE MERITS OF THE APPEAL Was the RPD's analysis of the Appellant's credibility unreasonable? What the Appellant was told about Falun Gong? [20] The RPD questioned the Appellant about what she was told by her friend about Falun Gong when she was first introduced to the practice. The Appellant provided numerous details about what she had learned from her friend but failed to mention details which had been included in the Basis of Claim Form (BoC), specifically, that she also learned about the history of Falun Gong and the truth of why Falun Gong was banned. The RPD drew an adverse credibility finding from the inconsistency between the Appellant's testimony and her BoC. [21] The Appellant submits that the RPD conducted a microscopic examination of her testimony and that she should not be expected to provide a verbatim account of her BoC narrative. [22] The RAD finds that the Appellant's submission in this regard is well founded. The RAD reviewed the recording of the testimony and found that the Appellant provided extensive details of her conversations about Falun Gong with her friend and, while she did not refer to having learned about the history and banning of Falun Gong, she did provide an explanation when confronted. The RAD finds that a failure to recall one or two lines in lengthy conversations does not amount to an inconsistency even when those lines are included in the Appellant's BoC. An inconsistency could have resulted if the Appellant had testified that she learned nothing about Falun Gong from her friend or if there was a marked departure about the nature of those conversations, but that was not the case. The RPD's finding in this regard is microscopic in nature and is not reasonable. Number of practitioners at first meeting [23] The RPD drew an adverse credibility finding based on an inconsistency between the Appellant's testimony and the information contained in her BoC about the number of people in attendance at her first Falun Gong group meeting. The Appellant testified that there were fourteen persons present at the first Falun gong meeting she attended, however, in her BoC, she indicated there were fifteen persons present. [24] The Appellant submits that the RPD's findings were microscopic findings on a peripheral issue. The Appellant also argues that contrary to the RPD's finding there was no indication in the BoC of whether she included herself in the group of fourteen persons in attendance at the meeting. [25] On review of the Appellant's BoC narrative the RAD finds that it is clear that the Appellant had included herself the group of fourteen persons at the meeting. In fact, the record reveals that the Appellant when confronted with this contradiction changed her testimony and stated that there were only fourteen persons present. [26] Nevertheless, the RAD finds that that while there is a contradiction, the contradiction is on a peripheral issue and is minor in nature. Number of practitioners present on day of raid [27] The RPD also drew an adverse credibility finding based on an inconsistency between the Appellant's testimony and the information contained in her BoC about the number of practitioners in attendance on the day of the police raid. [28] The Appellant testified that on the day of the raid there were twelve persons present at the meeting while her BoC indicated that there were fourteen persons present. The Appellant offered the explanation that two of the fourteen persons were acting as lookouts. The Appellant submits that the RPD found a contradiction where no contradiction exists but merely a difference in how the persons were counted. [29] The RAD finds that the Appellant's submission in this regard is well founded. The RPD states in its reasons that the Appellant "did not provide a reasonable explanation to address why she initially testified there twelve persons present in total." However, the RAD finds that, in fact, the Appellant did provide a reasonable explanation and that the RPD failed to explain why that explanation was rejected. If the RPD believed the explanation was not reasonable, it had the obligation to explain why. The absence of that explanation renders the RPD's finding in this regard unreasonable. Treatment of the Summons [30] The Appellant tendered a subpoena in support of her claim. The RPD found that the subpoena was not reliable and based its finding on its previous credibility findings and the documentary evidence which describes the prevalence of fraudulent documents in China. [31] The Appellant makes a number of submissions concerning the Appellant identity documents which do not seem to apply to the matter before the RAD. It appears that the Appellant's pleadings may be somewhat confused with the facts of another hearing before the RPD. Nevertheless, the Appellant does raise appropriate concerns about the RPD's treatment of the summons. The Appellant submits that the prevalence of fraudulent documents in China cannot be used as a sweeping conclusion without some analysis of the specific document itself. [32] The RAD agrees with the Appellant's submission in this regard. The RAD finds that in this case, the RPD did not address the summons during the hearing and failed to conduct any meaningful analysis of the summons itself. The RAD finds that, since this issue was not raised at the hearing, the Appellant's counsel could not anticipate that the panel member would raise an issue with the summons in its reasons. Therefore, the Appellant's counsel was not provided sufficient notice in order to question the Appellant or to make submissions on the issue at the hearing. The RAD notes that the RPD does not always have to put a credibility concern to a claimant. In particular, when a contradiction is between the claimant's evidence and country condition documents that form part of the evidence, notice may not be required.11 However, in this case, the evidence with respect to fraudulent documents in China does not directly undermine the summons tendered by the Appellant and the Appellant ought to have been given the opportunity to address the concerns of the RPD during the hearing. [33] Furthermore, the RPD also relied upon credibility findings that were either peripheral or unreasonable to undermine the credibility of the summons. [34] In light of the foregoing, the RAD finds that the RPD's adverse credibility finding with regard to the summons is unreasonable. Appellant's Falun Gong activities in Canada [35] The RPD found that the Appellant's activities in Canada did not provide pervasive evidence of her identity as a genuine practitioner of Falun Gong. The RPD noted that the Appellant claimed to have photographs of her Falun Gong activities in Canada but she did not tender them. She offered no other documents and made no efforts to obtain documents to demonstrate her activities in Canada. The RPD also noted that, although the Appellant alleged that she practiced at the home of fellow practitioner, she did not know the address and was unable to provide details on the location of these meetings. The RPD also noted that the Appellant provided inconsistent testimony on the frequency of her meetings at this location. The RPD noted the Appellant's testimony lacked consistency and drew adverse credibility findings. [36] The Appellant submits that the RPD's findings were unreasonable. The Appellant argues that the lack of documentation that she attends Falun Gong activities in Canada cannot solely be relied upon to discount her testimony. The Appellant further argues that the RPD's adverse credibility finding because of her failure to recall the street name is microscopic in nature. [37] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD based its credibility findings on more than the absence of documentation. The RAD finds that, in light of the above noted findings of the RPD, it was open to the RPD to reject the Appellant's testimony concerning her Falun Gong activities in Canada. The RAD finds that the RPD's finding in this regard was reasonable. CONCLUSION [38] The RAD finds that, despite the fact that some of the credibility findings of the RPD are reasonable, the unreasonable credibility findings noted above are significant enough to the overall determination of credibility that they render the RPD decision unreasonable. On this basis, the RAD finds that the RPD decision does not fall within a range of possible, acceptable outcomes which are defensible in regard to the facts, and the decision is therefore set aside. As such, there is no reason to address the remaining submissions of the Appellant. DISPOSITION AND REMEDY [39] Section 111(1) of IRPA allows the RAD to: (a) confirm the determination of the Refugee Protection Division; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; (c) refer the matter back to the RPD, giving the directions to the RPD [40] The RAD can only make the referral described in 111(1)(c) if it is of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.12 [41] Once the RPD's unreasonable credibility conclusions are removed, there is insufficient evidence left on the record for the RAD to confirm the determination of the RPD. Furthermore, the RAD notes that the RPD commented in its reasons that some of the Appellant's evidence did not raise credibility concerns. [42] The RAD finds however, that in addition to the credibility findings made by the RPD, there are a number of credibility concerns that were not addressed by the RPD, and the RAD is not able to substitute its own determination. In particular, the RAD notes the following credibility concerns: the Appellant's decision to leave her place of hiding to attend the US Consulate in China to obtain a visa; the Appellant's decision not to seek a Canadian visa given that she would not need to expose herself to risk; the lack of persuasive documents to corroborate that members of her Falun Gong group were arrested in light of the objective evidence concerning arrest, detention and prosecution; analysis of the summons in light of the objective evidence which describes content of summonses; delay in departure; travel on her own passport when being pursued by authorities; fail to claim in the US; delay in claim and other concerns. However, these concerns were never put to the Appellant or were not fully explored in the hearing, and, as such, the RAD cannot draw any conclusions. [43] The RAD has not seen or questioned the Appellant and there is no new evidence so the RAD would not be able to conduct a hearing to address the concerns noted above. The RAD is therefore in no position to make its own findings on her refugee claim. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or person in need of protection. [44] This appeal is allowed. Pursuant to Section 111(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "L. Favreau" L. Favreau May 7, 2014 Date 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 RAD Rule 57. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 11 Osei, Gyane Nana v. M.E.I. (F.C.T.D., no. T-2992-92), Reed, November 17, 1993. 12 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01733