TC0-03884

RAD File / Dossier de la SAR : TC0-03884 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 1, 2020 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Elyse Korman Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX ("the Appellant") is a citizen of the People's Republic of China. He claims to fear persecution from the Chinese government, stemming from a land dispute and his son's involvement in an underground Christian church. The Refugee Protection Division ("RPD") rejected the Appellant's claim. The panel found that the Appellant was not a credible witness. The RPD believed that there was insufficient evidence of a risk to the Appellant arising from the land dispute he experienced. The Appellant challenges this decision. He argues that the RPD fixated on omissions is his port of entry ("POE") interview. He says the RPD was wrong to draw inferences from his failure to expand on his allegations during his first interview. [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is allowed. I disagree with the RPD's credibility assessment, which was limited to a single omission that was treated as dispositive of the claim. There are other credibility issues that ought to be assessed in the context of an oral hearing. The Refugee Appeal Division ("RAD") therefore sets aside the RPD's negative decision and refers this matter to the RPD for redetermination before a differently constituted panel. BACKGROUND [3] The Appellant describes that he had a dispute with Mr. XXXX XXXX who is the former XXXX XXXX of the local Public Security Bureau ("PSB"). The dispute was about the ownership of a parcel of farmland, which the Appellant says his father purchased from Mr. XXXX XXXX. However, in 2017, when the village committee renewed the property ownership, Mr. XXXX submitted a fraudulent property agreement, claiming that the land belonged to his late father. He claimed the Appellant was simply a tenant. [4] In XXXX 2018, the Appellant's son was arrested by the PSB for his involvement in an underground Christian church. The Appellant paid for his release, and helped him to leave China and seek refugee protection in Canada. Later that year, in XXXX 2018, the PSB detained the Appellant and questioned him about his son. The Appellant was asked if he too was involved in the same church. The Appellant felt the underlying motivation for his detention was his dispute with the former PSB chief, since, during his detention, he was also warned not to take his land dispute to the village or town governments. [5] Rather than reporting back to the PSB in one week as ordered, the Appellant went into hiding. The PSB visited the Appellant's home, as he had failed to report. He was suspected of being a member of an underground church. The PSB told the Appellant's common law partner that she should not conceal any information about the Appellant's whereabouts or the whereabouts of his son. The Appellant obtained a false passport through a smuggler, which he used to travel to Canada. Upon arrival in Canada, the Appellant initiated his refugee claim. [6] The RPD heard the Appellant's claim on December 3, 2019 and issued a written decision on January 16, 2020. The principal issue was the Appellant's credibility. The RPD did not seem to take issue with most of the facts around the land dispute. The RPD accepted the possibility that the land dispute had taken place. However, the RPD rejected the allegation that the Appellant had been detained due to his son's Christian activities. The panel noted discrepancies between the Appellant's POE interviews. In the first interview, the Appellant mentioned nothing about his son's Christian activities. He mentioned his detention, but not how it was related to his son's Christianity. The RPD confronted the Appellant about this, but it found his explanation unsatisfactory. Without any credible evidence that the Appellant was accused of being an underground church member, and without any evidence that the land dispute would cause the Appellant to be pursued by authorities, the RPD rejected the claim. Role of the Refugee Appeal Division [7] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. ANALYSIS [8] The determinative issue is whether I can agree with the RPD's credibility findings. I cannot, for the reasons that follow. [9] Though there were other inconsistencies between the Appellant's POE statements and his Basis of Claim ("BOC") form, the RPD narrowed its credibility analysis to an omission about the reasons for the Appellant's detention. The first POE interview took place on March 27, 2019, upon the Appellant's arrival at Pearson International Airport. The Appellant stated he was seeking refugee protection because his farmland was being appropriated by the government, and that he was detained for three days. He said he refused to give up his land, and so he was detained by the police.3 A second interview took place on April 8, 2019. By this time, the Appellant had retained counsel. During this second interview, a much more thorough examination took place with respect to the basis for the Appellant's claim. This time, the Appellant explained how his son was involved in an underground Christian church, and how the detention was related to both the land issue and his son's Christian activities.4 [10] The RPD took issue with the description given in the first POE interview. The panel found it unreasonable for the Appellant to omit the fact that he had been interrogated about his son during his detention. The RPD determined that the Appellant had merely changed his story in his second POE interview to bolster his claim with a connection to his son's religious claim. The Appellant was confronted about the omission, and the RPD believed his explanation had to do with poor interpretation at the POE interview. The RPD rejected this explanation, as interpreters had been provided at both interviews, as he had not raised any problems with interpretation with either interpreter, and as the Appellant had confirmed that his declarations were truthful, complete, and correct. [11] I am persuaded by the Appellant's arguments on this issue and I have identified further errors in the RPD's analysis. In my review of the hearing recording, the Appellant did not blame the omission on poor interpretation. The RPD misstates the Appellant's explanation. The Appellant did indeed blame an interpreter for failing to interpret certain documents, but this was in relation to the Schedule A and Schedule 12 forms that were completed, and how the Schedule A form had omitted the Appellant's detention. With respect to the basis for the RPD's credibility finding, i.e. the Appellant's failure to mention how his detention was connected to his son's religious activities, the Appellant did not blame the issue on poor interpretation. Rather, when asked why he failed to disclose the fact that he was detained due to his son's Christian activities, the Appellant explained that the officer never asked him about the reasons for his detention. [12] The following took place at the RPD hearing: Member: So my question was for you to explain why you didn't say at the port of entry, to the Canadian officer, anything about - that you were detained because of the accusation of your son being a member of a Christian underground church. Claimant: They didn't ask me about that back then.5 [13] The Appellant's explanation is entirely supported by the POE interview notes. The Appellant was only asked vaguely why he was seeking protection, how long he was detained, and whether the government simply decided to take his farmland. The remainder of the interview dealt with other issues, such as the Appellant's travel arrangements, who he knows in Canada, and questions relating to admissibility.6 [14] As stated in Cetinkaya,7 the purpose of the POE interview is to assess whether an individual is eligible and/or admissible to initiate a refugee claim. It is an error for the RPD to impugn the claimant's credibility solely on the ground that the information provided in the interview lacks sufficient detail.8 [15] That is not to say that the RPD can never rely on inconsistencies between POE interviews and other evidence when making negative credibility findings. In the present case, for instance, the evidence indicates that an interpreter was provided at each interview, and the interview notes are accompanied by an interpreter's declaration.9 There is little to indicate to me that the Appellant's statements cannot be relied upon for reasons of reliability. [16] However, with respect to the level of detail provided in the initial interview, I agree with the Appellant that the RPD's findings cannot be sustained. At the time of the first interview, the Appellant had just disembarked from a lengthy flight. He did not have the benefit of counsel. He worked as a farmer in China and had only four years of formal education. The fact that he was able to run a farm for over a decade does not mean we can expect he would be able to provide the legally relevant details of his claim against China when asked, in a broad manner, why he is seeking refugee protection. While the son's activities are relevant to the issue of nexus to a Convention ground, as well as the risk from authorities in China, the Appellant believed his son's Christian activities were only a pretense for his detention. He believed it was the land dispute that had truly motivated the PSB to detain him. The Appellant feared that Mr. XXXX would falsely accuse him of being involved in an underground church. Upon retaining counsel, and upon being questioned in greater detail about the basis of his claim in his second POE interview, the Appellant gave a much more thorough account of what had happened. Under these circumstances, the omission in his first POE interview is not a valid basis for disbelieving the Appellant's claim. [17] As the Appellant points out, the RPD's finding on this matter was treated as dispositive. It caused the RPD to reject the material allegations that supported the Appellant's claim as a Convention refugee. I must therefore set aside the RPD's decision on appeal. [18] I decline to substitute a positive decision in this case, as there remain a few credibility concerns, relating to the following: * Nature of the land dispute and profile of the agent of harm: The Appellant's BOC narrative describes how he began to have problems with Mr. XXXX in early 2017 over the ownership of the property, and that Mr. XXXX was the retired XXXX XXXX of the local PSB. However, at his first POE interview, the Appellant claimed his farmland was being appropriated by the government.10 When questioned as to why he said this to the POE officer, the Appellant testified that Mr. XXXX was, at that time, the director of the PSB station, and so he believed Mr. XXXX represented the government. When confronted about whether Mr. XXXX was retired or not, the Appellant confirmed that he was the previous director of the PSB station, but he provided no further explanation. The Appellant's statements raise issues around the nature of the land dispute (as government expropriation or an ownership dispute between private parties), and whether Mr. XXXX was in fact retired at the time the dispute began. * Seizure of land: In his first POE interview, the Appellant stated how, in XXXX 2019, he received notice of the government's intention to take his land.11 However, the BOC narrative mentions nothing of any events in XXXX 2019, nor of any notice that his land would be taken by the government or from Mr. XXXX. Although I note the existence of a court order about the seizure of two acres of land for a one year period beginning XXXX XXXX, 2019, the court notice is dated XXXX XXXX XXXX 2019, well after the Appellant's POE interview took place.12 * The number of PSB visits to the Appellant's home: In his hearing, when asked whether the police were looking for him in China, the Appellant answered in the affirmative. He explained how he did not go in to report on time and that the police now suspected him of being a member of an underground church. Confusion arose around this issue. The Appellant testified to how he knew this because in XXXX 2019, the PSB went to his home to look for him. He stated this was the last time they went to his home. However, the Appellant's updated BOC narrative describes how the PSB went to his home in XXXX 2019 to ask about his whereabouts.13 There is no mention of a XXXX 2019 visit; only that in XXXX 2019, the village committee refused to provide a copy of a document to the Appellant's common law partner.14 In addition, when confronted about the timeline and when the PSB went to his home, the Appellant stated that they came to his home once in 2018, and then in XXXX 2019 again. The RPD asked the Appellant why he believed they were still looking for him if, between XXXX 2019 and the hearing date, they had not returned. Still, the Appellant made no mention of another visit in XXXX 2019. The RPD did not identify this discrepancy and did not confront the Appellant on it. * The PSB's interest in the Appellant: Contrary to his BOC narrative, which indicates the police had actively been searching for the Appellant before he left China, and even threatening his spouse, in his first POE interview, the Appellant stated that he was not currently wanted by the police in China.15 The RPD did not identify this inconsistency. [19] It is possible that reasonable explanations will be presented to the RPD in response to these concerns. However, it is preferable for these to be addressed in the context of an oral hearing, which the RAD is not able to hold without new evidence. CONCLUSION [20] For the above reasons, I disagree with the RPD's reasons. However, there remain unresolved credibility issues for the RPD to examine. I therefore set aside the RPD's negative decision and refer this matter to the RPD for redetermination before a differently constituted panel. [21] The appeal is allowed, pursuant to paragraph 111(1)(c) of the IRPA. (signed) M. Oh M. Oh December 1, 2020 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, Exhibit 1, Port of entry interview, March 27, 2019, at pp. 58-59. 4 Ibid., Exhibit 1, Port of entry interview, April 8, 2019, at p. 36. 5 RPD hearing audio recording, at 1:12:41 to 1:13:37. 6 Exhibit RPD-1, RPD Record, Exhibit 1, Port of entry interview, March 27, 2019, at pp. 58-62. 7 Cetinkaya v. Canada (Minister of Citizenship and Immigration), 2012 FC 8. 8 Ibid., at para. 51. 9 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 32 and p. 57. 10 Ibid., Exhibit 1, Port of entry interview, March 27, 2019, at p. 59. 11 Ibid. 12 Ibid., Exhibit 6, at p. 127. 13 Ibid., Exhibit 5, at p. 12. 14 Ibid. 15 Ibid., Exhibit 1, POE notes, March 27, 2019, at p. 62. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-03884 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français