TB3-06802

RAD File No. / N° de dossier de la SAR : TB3-06802 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 December 13, 2013 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 XXXX, a citizen of China, appeals the negative decision of the Refugee Protection Division (RPD) dated August 19, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows this appeal and refers the matter back to the RPD for re-determination. BACKGROUND [3] The Appellant alleges he entered university in XXXX 2011 and following an illness was behind in his studies. He could not sleep because of the pressure, and he performed poorly at school. He went to his doctor, who prescribed a prescription that caused the Appellant to have headaches and dizziness. [4] In XXXX 2012, the Appellant's friend and classmate told him about Falun Gong and how it could help him become a strong person. He told him that once he became strong, his sleeping problem would be gone. The Appellant was concerned about the Government's ban on Falun Gong, but his friend told him that the practice he attended was safe and that it had never run into trouble in the past. Persuaded by the precautions that were in place. The Appellant went with his friend and began to attend his group practice in early XXXX 2012. He attended regularly to practice the exercises on weekends and to study the text Zhuan Falun. He also practiced Falun Gong at home. The Appellant alleges his sleeping problem reduced, and he caught up in his studies. [5] The Appellant alleges that, on XXXX XXXX, 2013, the Public Security Bureau (PSB) raided the practice group. The Appellant was able to escape, went into hiding at a friend's house and called his parents to tell them about his trouble. While he was in hiding, he learned from his parents that his friend, who introduced him to Falun Gong, and another practitioner were arrested by the PSB. The Appellant's friend, with whom he was hiding, assisted him by locating a smuggler who helped him safely leave China. [6] The Appellant, after his arrival in Canada, learned from his friend that the PSB went to his house looking for him on XXXX XXXX, 2013 and left a summons with his parents. The Appellant alleges that he cannot return to China because of the allegations against him and because he cannot freely practice Falun Gong. [7] The Minister did not intervene in this appeal. [8] The RPD focused on the credibility of the allegations that the Appellant was a Falun Gong practitioner and if he was wanted by the PSB in China. The RPD determined the Appellant was not a Convention Refugee or a person at risk to life, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The RPD made the following individual findings. (1) The Appellant is a citizen of China. (2) The Appellant is not a credible witness in all regards. (3) The panel concluded the Appellant's version of the raid appeared rehearsed. (4) The Appellant, on a balance of probabilities, is not wanted by the PSB in regard to his Falun Gong activities. (5) The lack of an arrest warrant-when one should reasonably have been issued-undermines the Appellant's credibility in regards to the allegation that he is being sought by the PSB. (6) The panel draws a negative inference in regard to the Appellant's family being unaffected, even though the Appellant was being sought by the PSB for participation in illegal Falun Gong activities. (7) The panel finds that the Appellant has not established that the PSB raid occurred, that the PSB have an interest in the Appellant, nor were they pursuing him for being a Falun Gong practitioner. (8) The panel does not find it reasonable that the Appellant required a "snakehead" to travel from China to Canada. (9) The panel finds the Appellant's failure to claim in the U.S.A. is not consistent with someone who fears for his life from the Chinese authorities. (10) The RPD finds the Appellant has not established that he was a Falun Gong practitioner in China or that he is currently a Falun Gong practitioner. [9] The Appellant submitted an appeal of the negative determination on October 10, 2013. The Appellant made the following submissions: (1) The panel erred in arriving at its ultimate conclusion in this case for the following reasons: (a) The panel made unreasonable and unwarranted credibility determinations which were based on speculation, impermissible inferences and documents which were not in evidence; (b) The panel made a critical error by misapprehending the documentary evidence before it; and (c) The panel made serious errors in adjudicating the Appellant's identity as a Falun Gong practitioner. (2) Given that the panel failed to assess the risks facing the Appellant as a Falun Gong practitioner if returned to China, the panel's errors in this regard are fatal to its ultimate conclusion. [10] The Appellant did not ask for an oral hearing, nor did he provide any new evidence. [11] The Appellant requests that the Refugee Appeal Division set aside the decision of the Refugee Protection Division panel and substitute that decision with its own determination that the Appellant is a Convention refugee or a person in need of protection in accordance with its jurisdiction under Section 111(b) of the IRPA. Alternatively, the Appellant requests that the Refugee Appeal Division remit this matter back to a differently-constituted panel of the Immigration and Refugee Protection Board under Section 111(c) of the IRPA. THE STANDARD OF REVIEW [12] The Appellant submits that the RPD erred by making unreasonable and unwarranted credibility determinations which were based on speculation, impermissible inferences and documents which were not in evidence. The alleged errors concern credibility and negative inferences which are errors of fact. [13] The Appellant did not make any submissions on the issue of the standard of review. Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by RAD. [14] In assessing and selecting the appropriate standard of review for findings of fact, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,1 which take into account the list of factors in Dunsmuir.2 The Newton factors include: (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. [15] 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, as such, these factors are very relevant to the relationship between the RPD and the RAD. Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,3 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding 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. [16] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: IRPA. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and the RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD 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. [17] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;4 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [18] 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 must conduct a hearing6 and assesses 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. [19] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance but exists to review the decisions made by the RPD. 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 and hold hearings is limited to evidence that arose after the rejection of the 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.8 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.9 [20] Given that the RPD has held a hearing on the totality of the evidence, 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 is 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".10 [21] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".11 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.12 [22] In the case at hand, the Appellant alleges that the RPD made errors of fact. As such, the nature of the question at issue is one of fact. Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of facts in this claim and will consider whether the findings meet the reasonableness test. ANALYSIS OF THE MERITS OF THE APPEAL [23] The RAD focused on the determinative issue: Did the RPD err in making credibility determinations which were based on documents which were not in evidence? Credibility finding and documentary evidence [24] The Appellant argues that the panel made unwarranted adverse credibility findings, which were based on speculation and impermissible inferences. More critically, the panel based such inference on documentation which was not properly before it, but in fact had been removed from the National Documentation Package (NDP) at the time of the hearing. [25] The panel noted at the outset of its decision that the determinative issues in the Appellant's matter are the credibility of the Appellant's narrative, whether he was a Falun Gong practitioner in China, whether he is wanted by the PSB, and if he is a genuine Falun Gong practitioner in Canada. [26] The RPD found that it would be reasonable that the PSB would have issued a warrant given that according to the Appellant he failed to show for the summons and additionally the PSB visited his home on three occasions. The RPD further found the lack of an arrest warrant when one should reasonably been issued undermines the Appellant's credibility in regards to the allegation that he is being sought by the PSB. The RPD referred to documentary evidence to support this finding.13 [27] The RAD notes that the RPD referred, in its Reasons rendered on August 19, 2013, to documentary evidence that was not in the NDP or before the Appellant or his counsel at the time of the hearing on May 13, 2013. In fact, the evidence had been removed from the NDP in October, 2012. The RAD finds the RPD erred in relying on documentary evidence that was not part of the record and by applying it to its finding that the Appellant is not being sought by the PSB in China. The RAD finds the RPD's error in arriving at this credibility finding that goes to the very heart of the claim, is fatal to its ultimate conclusion. Therefore, the RPD's determination that, the Appellant is not being sought by the PSB in China is unreasonable and cannot stand. SUMMARY [28] The RAD has determined that the RPD finding that the Appellant is not wanted by the PSB in China is unreasonable and an error of fact. This erroneous credibility finding was based on documentation that was not in evidence. The RPD made an overall credibility determination which rested in large part on a conclusion that is not defensible in fact. The unreasonable credibility finding is significant enough to the overall determination of credibility that it renders the decision unreasonable. The RAD finds the decision does not fall within a range of possible, acceptable outcomes which are defensible in regards to facts, and the decision is therefore set aside. DISPOSITION AND REMEDY [29] The Appellant asks that his refugee claim be returned to the RPD for re-determination. [30] Section 111(b) of IRPA allows the RAD to set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made. The RAD may only refer the matter back to the RPD if 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.14 [31] The RAD finds that the RPD's decision in this matter was wrong in fact. The RAD considered the totality of the evidence before it and found that it could not substitute a decision for that of the RPD without hearing evidence that was presented to the RPD. [32] Once the RPD's unreasonable conclusion is removed, there is insufficient evidence for the RAD to make its own determination. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. The Appellant has submitted no new evidence, and therefore any substitute decision would have to rely on evidence that was already presented to the RPD. 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 a person in need of protection. DETERMINATION [33] For the reasons given above, the RAD allows this appeal and sets aside the decision of the RPD. Pursuant to ss. 111(1)(c) of IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. (signed) "C. Forbes" C. Forbes December 13, 2013 Date 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110.3. 8 IRPA, s. 110.4. 9 RAD Rule 57. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 RPD's record, Exhibit 3, National Documentation Package (NDP), (31 October 2012), item 9.3. 14 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06802