TB6-08347

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 : TB6-08347 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 13, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M. Lewis Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Roberto Lonardi Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of China and a permanent resident of Peru, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that she fears persecution at the hands of agents of the government of China because she is a member of an underground and illegal "house Church". Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's claim for refugee protection was heard on December 9, 2015 and February 22, 2016. A negative decision was rendered in writing, May 31, 2016. The RPD found that the Appellant was unable to establish her claim on the basis of credible and trustworthy evidence. Simply put, the RPD found that the Appellant was not in danger of persecution in China. [4] The Minister has intervened in this appeal, disclosing two exhibits which the Minister alleges raises concerns regarding the Appellant's credibility. [5] Pursuant to section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed Appellant's Issues [6] The Appellant submits that the RPD erred; a) In its assessment of the Appellant's exit from China; and b) In its assessment of the Appellant's failure to claim refugee status in the USA; and c) In its assessment of the Appellant's delay in claiming refugee status in Canada; and d) In the assessment of the Appellant's corroborating documents; and e) In its assessment of the Appellant's Christian claim. Admissibility of New Evidence [7] The Appellant has not submitted any new evidence for consideration. [8] The Minister has submitted two documents as new evidence. They are: 1) A Tier 3 FCC report2; and 2) Information related to the US visa application process in Lima, Peru. [9] The documents presented by the Minister are credible as they originate from a reliable source, that being the U.S. government. The documents are very relevant and are material as they speak to the application (and the process of application) by the Appellant for a U.S visa in order to allow her to transit the USA on her way to China. Section 110 (4) does not apply to evidence submitted by the Minister in an intervention of this nature. Therefore, these documents are allowed into evidence in this appeal. Analysis The Role of the RAD [10] The RAD is an Appellate body governed by specific legislation3 and guided by the jurisprudence4 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.5 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [11] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.6 [12] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,7 with no deference accorded to the RPD.8 [13] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [14] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [15] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [16] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [17] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [18] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [19] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [20] The Appellant argues that the RPD erred in its assessment of the Appellant's exit from China; in its assessment of the Appellant's failure to claim refugee status in the USA; in its assessment of the Appellant's delay in claiming refugee status in Canada; in the assessment of the Appellant's corroborating documents; and in its assessment of the Appellant's Christian claim. [21] The original claim is based on persecution in China which was a result of the Appellant being in grave emotional distress driving her to participate in an illegal house Church activity. The distress was caused by the Appellant, according to her testimony, divorcing her husband in 2013 and losing custody of her two children to him. This is the core of the claim, combined with her alleged fear of returning to Peru where her ex-husband may seek her out to kill her. According to her testimony and to her BOC form, she divorced her husband in XXXX of 2013. The problem arises when I view the Minister's evidence,9 which shows clearly that the date of the visa application was XXXX XXXX, 2014, XXXX months after the Appellant's alleged divorce (which led to her distress which in turn led to her activity in an illegal home Church in China), and in that application, it clearly indicates that the Appellant was, on XXXX XXXX, 2014, still married to XXXX XXXX XXXX XXXX and still living at the same address as he was living. This is a major contradiction which goes to the very core of the claim/appeal. The Minister notified the Appellant through her Counsel by facsimile on July 25; however, no response has been received at the Board as of September 1, 2016 which is long past the deadline for a response to the Minister's intervention. As no response to the Minister's evidence and submissions has been tendered, I can only presume that the Appellant is not contesting, nor explaining the major contradiction noted above. [22] The Minister's evidence clearly undermines the Appellant's credibility. A second major credibility concern occurs in the Appellant's testimony, both written and oral, that she required the assistance of a smuggler to get her out of China and into the USA and eventually into Canada. The Minister's evidence clearly shows that the Appellant had intended to leave China via the USA when she applied for the USA visa almost a year before she allegedly used a smuggler to flee China. The Appellant left China on her own valid passport on XXXX XXXX, 2014. In her Memorandum of Appeal, the Appellant explains to me that her departure from China occurred XXXX days or so before she became a person "wanted" by the Public Security Bureau (PSB). The Appellant legally flew out of China and with her US visa in hand, which had been issued over XXXX months earlier; she legally entered the USA. As the Appellant was not a "wanted person" in China according to her own submissions and she had all the necessary legal documentation in order to travel to the USA, it makes no sense that she would pay a smuggler to get her from China to Canada when she had legal access to the USA without a smuggler. I concur with the Appellant that the RPD erred in its assessment of the Appellant's departure from China; however, I also concur with the Minister in his submission that the Tier 3 FCC report10 shows that the Appellant has misrepresented herself to Canadian authorities and is therefore not credible, [23] With the finding of a lack of credibility of this Appellant, as indicated clearly in the Minister's evidence, the Appellant's arguments are gravely weakened. [24] As failing to claim refugee protection in the first country able and willing to provide it is not a determining factor in refugee protection, nor is a delay in claiming determinative, I will not spend much time on these issues. Suffice it to say that if the Appellant was credible, then her stories regarding the above failure and delay would likely be acceptable; however, she is not credible. [25] As the Appellant's claim against China is based on persecution due to her alleged membership in an illegal Church, which itself is due to her distress based on her marital woes, it is incumbent upon her to satisfy the Board that her allegations concerning spousal abuse in Peru are true. As her own testimony is strongly contradicted by the Minister's evidence, and that evidence is from a very reliable source, I cannot believe that the Appellant, who told the US government on XXXX XXXX, 2014 that she was still married to and living at the same address with the man she claims she divorced XXXX XXXX earlier, was abused by her husband. Consequently, her reason for fleeing to China and her reason for joining an underground Church are not credible. [26] I find that the Minister's evidence is persuasive and therefore I find that the RPD did not err in its credibility assessment. As there is no doubt in my mind that the credibility finding of the RPD is correct, I must find that there are insufficient grounds for this appeal Disposition [27] The RAD has found that the RPD decision will stand. CONCLUSION [28] Pursuant to section 111(1) (a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed (signed) "David Lowe" David Lowe September 13, 2016 Date 1 Exhibit P-2, Appellant's Record at pages 28 - 40. 2 Exhibit P-2, Appellant's Record, Minister's submission M-1. 3 Immigration and Refugee Protection Act (IRPA) (S.C. 2001, c. 27). 4 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 5 Dhillon, paras. 14-18. 6 Huruglica, 2016 FCA 93, para. 103. 7 Ibid. 8 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 9 Exhibit P-2, Appellant's Record, Minister's submission M-1. 10 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08347