TB4-03097

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 : TB4-03097 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 July 22, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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 N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of China, is appealing her decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. She has submitted new evidence in support of her appeal, however she has not requested an oral hearing. She asks that the Refugee Appeal Division (RAD) grant her a favourable decision, or, in the alternative, that the matter be referred to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers this claim to the Refugee Protection Division for re-determination by a differently- constituted panel. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL: Express statutory conditions: [3] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [4] If the statutory requirements have been met, the panel must then consider the factors in Raza, in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a) for the IRPA. The Court in Raza held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. Newness: [5] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? [6] If not, the evidence need not be considered. Credibility: [7] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. Relevance: [8] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. Materiality: [9] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [10] The following "new" evidence was submitted by the Appellant, along with her Statutory Declaration: (i)The Appellant's Chinese passport (ii)The Appellant's son's Birth Certificate [11] The Appellant's Chinese passport was not available at the RPD hearing. According to her testimony, it was with the smuggler, until the outstanding monies were paid. In her Statutory Declaration, the Appellant explains that her mother was able to obtain her passport from the smuggler on XXXX XXXX, 2014, by paying the remaining amount of RMB (30,000) owed to the smuggler. Her mother borrowed the money from family and friends and the passport was received by the Appellant XXXX XXXX, 2014. [12] Since this document could not reasonably have been available at the time of the RPD hearing, this new evidence meets the statutory requirement. Moreover, this passport is relevant and material as it relates to the Appellant's identity, which was an issue with the RPD and, therefore, it is admitted. [13] The RPD, although not making a finding, questioned the Appellant with respect to the information contained in her Canadian Visitor's visa, wherein it states that she has a daughter when the Basis of Claim form (BOC) indicates a son. The Appellant explains in her Statutory Declaration that she did not have her son's Birth Certificate at the time of her RPD hearing because she did not know that it would be required. The RAD finds that this birth certificate could reasonably have been available at the RPD hearing and, therefore, does not meet the statutory requirement. Accordingly, this document is not admitted. Background: [14] The Appellant's claim is based on her Falun Gong activities in China. She alleges that, on XXXX XXXX, 2011, the police discovered her activities along with her fellow practitioners. She was able to escape to the home of a friend. The following morning her mother advised her that the Public Security Bureau (PSB) had gone to her home to arrest her and they had produced a search warrant, although they did not leave a copy. The PSB also informed her mother that other fellow members had been arrested. The Appellant's mother was warned not to cover up for her daughter, or she, too, would be arrested. [15] The PSB returned to the Appellant's home on XXXX XXXX, 2011, again with an arrest warrant, but they did not leave a copy. The Appellant also stated that one Falun Gong member, who was arrested on XXXX XXXX, 2011, has not been released. STANDARD OF REVIEW [16] I have considered the Appellant's submissions with respect to "Standard of Review," however, the Federal Court in Iyamuremye1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.2 The correctness standard is applicable to questions of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD.3 In this particular case, the RAD has applied the reasonableness standard. COUNSEL'S SUBMISSIONS [17] Counsel submits that the RPD's assessment of the Appellant's identity (paragraphs 4-17 of its Reasons) was unreasonable on the basis that, while it referred to documentary evidence that was easily obtainable in China, it did not make a finding that the Appellant's Resident Identity Card (RIC) and Hukou were indeed inauthentic and/or fraudulent. [18] Counsel further submits that the RPD's findings regarding the Appellant's passport were unreasonable and that the RPD did not take into consideration the reason why the smuggler still had her passport, namely, due to outstanding payment to the smuggler by the Appellant. [19] Counsel argues that the focus on discrepancies surrounding the Appellant's Canadian Visitor Visa application were microscopic. [20] Counsel makes further arguments with respect to questions surrounding the lack of a search warrant and the gap in pursuit by the PSB, however the RAD concludes that findings in this regard were not, in fact, made. The RPD, having found identity to be an issue, as well as credibility surrounding identity, did not make findings with respect to the merits of the claim. IDENTITY Appellant's Passport: [21] The RPD made a finding that, in the absence of a vital document, i.e. the Appellant's passport, and not accepting her explanation for it being in China, that the Appellant's identity was at issue. The RPD did not accept the explanation provided by the Appellant that she owed money to the smuggler and, until the outstanding amount was paid, the passport would not be returned to her. The Appellant submits that the explanation for the absence of her passport was reasonable. [22] The RAD finds that the conclusion reached by the RPD is unreasonable in the absence of reasons as to why it did not accept the Appellant's explanation. Based on the new evidence, the Appellant has established her identity based on the original passport. Appellant's HUKOU and RIC: [23] The RPD did not make a negative finding on the authenticity of the above. Counsel submits that it then calls into question why the RPD focused on the lack of identity in its decision. The RAD finds that, in the absence of the Appellant's passport, and then saying that fraudulent RIC's and HUKOU's are easily obtainable in China, the RPD, although mentioning the lack of photos or school records, made an unreasonable finding that her failure to produce a passport was detrimental to her establishing her identity. [24] The RPD also made findings with respect to the Appellant's visa application, wherein the smuggler had made mistakes with respect to the sex of her child, her employment, and the dates of her studies. In this regard, the RPD made adverse credibility findings as a result. The Appellant submits that the RPD was microscopic in its findings. The RAD finds that information on the visa application may have lead to negative inferences, however the RAD finds that these discrepancies, which impugned the Appellant's credibility with respect to her identity, were unreasonable. The RAD finds that the RPD reasons were unclear on this aspect and despite the general statement that the Appellant lacked credibility, given that the RPD only addressed identity, it cannot be construed as a finding on the merits. [25] The RPD questioned the Appellant with respect to different birthdates provided for the family. The RPD found that the Appellant contradicted her testimony when she stated initially that the smuggler had provided the wrong dates and then later explained the discrepancies due to the lunar calendar versus the Western calendar. She explained that all of the dates given were according to the lunar calendar, however, when verified with the HUKOU and the Basis of Claim form (BOC), she agreed that these dates of birth were according to the Western calendar. The RPD made a finding in this regard that the Appellant had undermined her own credibility statements with the foregoing contradictions. Counsel submits that the RPD's focus on discrepancies relating to birthdates, employment and schooling when a smuggler is involved in a Canadian Visitor's Visa (CVV) was unreasonable and that no benefit or advantage would have accrued to the Appellant in deliberately falsifying this type of information. The RAD finds that, although these contradictions may have impugned the credibility of the Appellant, the RPD's findings did not impugn her overall identity findings. [26] The RPD found that it was satisfied that the Appellant is a Chinese citizen, however it was not satisfied as to her personal identity. Counsel submits that these findings were not made in clear and unmistakeable terms and cites Hilo4 in support of his argument. Counsel submits that the Appellant's lack of a birth certificate was insufficient to undermine her documentary evidence and testimony regarding her identity. The RAD finds that fulsome Reasons for the RPD's dissatisfaction in this regard were not articulated in its Reasons, and are, therefore, unreasonable. The RPD failed to indicate what other documents would have satisfied the RPD as to her personal identity. [27] Counsel further argues that the RPD ignored other documentary evidence on the record going to the Appellant's personal identity, consisting of her Chinese Divorce Certificate and a Biometrics Report. The RAD finds that these documents should have been considered and failure to do so was unreasonable. Falun Gong Activities: [28] The only mention of the merits of the claim in the RPD's decision relate to the lack of corroborative documents, principally the evidence that the Appellant was being summoned by the PSB and the lack of a corroborative evidence in this regard. In addition, the RPD questions the Appellant about the gap in inquiries by the PSB, namely, from XXXX 2011 until XXXX 2012. The Appellant did not provide a response, however the RPD made no finding in this regard. CONCLUSION [29] The RAD concludes that the RPD concentrated on identity, and, in doing so, has made some unreasonable findings. [30] No findings were made on the merits of the claim and, therefore, the RAD cannot substitute or confirm on other grounds without hearing all the evidence presented to the RPD. Accordingly, pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers this claim back to the Refugee Protection Division for re-determination by a differently- constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara July 22, 2014 Date 1 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 2 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47. 3 Ibid. 4 Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.) (F.C.J. No. 228 (F.C.A.) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03097