TB5-07772

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 : TB5-07772 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 September 30, 2015 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 ministre REASONS FOR DECISION [1] XXXX XXXX ("Appellant") claims to be a citizen of the People's Republic of China ("China"). She appeals a decision of the Refugee Protection Division ("RPD") rejecting her claim for refugee protection. The Appellant is submitting new evidence and she is requesting an oral hearing. She requests that the appeal be allowed, the decision of the RPD be set aside and the matter returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111 (1) (c) and (2) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") allows the appeal and refers the matter back to the RPD for re-determination. BACKGROUND [3] The Appellant submits that she is being persecuted in China because of her perceived political opinion. She states that as a result of her employment by XXXX XXXX XXXX XXXX, she will be persecuted if she returns to China. XXXX XXXX XXXX apparently spoke to her about activities of a group to which he belonged that opposes the Communist Party of China. She says that XXXX XXXX XXXX spoke to her about the investigation against him and that she was subpoenaed and interrogated. In January 2015, she heard that XXXX XXXX XXXX had died in prison and she was frightened to stay in Shanghai. She felt that she would suffer persecution because of her association with XXXX XXXX XXXX. ROLE OF THE RAD [4] The RAD finds that the Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [5] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [6] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reason: (a) (a) The Appellant failed to produce sufficient and credible documents and evidence to establish her personal identity as a national of China as required by section 106 of the Immigration and Refugee Protection Act ("IRPA") and Rule 7 of the Refugee Protection Division Rules. Admissibility of new evidence presented on appeal [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. [8] The Appellant tenders the following as new evidence: (a) An affidavit sworn by the Appellant on XXXX XXXX, 2015; (b) Household Registration Booklet (Hukou); (c) Graduation Diploma from XXXX XXXX XXXX XXXX XXXX; (d) Graduation Diploma from XXXX XXXX XXXX XXXX XXXX. Submissions [9] The Appellant submits that the RPD determination was based principally on the fact that the Appellant only provided one document to corroborate her Chinese citizenship, being her Chinese Resident Identity Card ("RIC"). The RPD did not consider the merits of the Appellant's refugee claim. The sole issue that the RPD considered was national identity. It is submitted that the new evidence tendered by the Appellant conclusively proves that she is a citizen of China. It is further submitted that these documents directly contradict the RPD's finding that the Appellant failed to establish her identity as a Chinese national. [10] The Appellant argues that this evidence satisfies the requirements in section 110(4) of the IRPA because the Appellant in this particular case could not reasonably have been expected in her particular circumstances to have presented it at the time of the rejection of the refugee claim. As an unrepresented claimant who did not have counsel or any other assistance in asserting a claim, the Appellant simply did not appreciate or understand that such evidence was necessary for her claim. Jurisprudence states that while administrative tribunals are not required to act as counsel for unrepresented parties, they must still ensure that a fair hearing takes place. Unrepresented litigants are, therefore, entitled to "whatever leeway is reasonably possible" to allow them to present a case in its entirety. [11] The Appellant further submits that in cases where claimants are not represented by counsel, the tribunal must be "alive to the risk that the claimants were ill-prepared to represent themselves." Under such circumstances, the tribunal has an obligation to ensure that claimants understand the proceedings, have a reasonable opportunity to tender any evidence to support their claim and are given a chance to persuade the tribunal that their claims were well-founded. It is submitted that for all these reasons it is requested that the RAD should exercise its discretion to allow the Appellant's new documents into evidence. The documents are credible, reliable and material. [12] Section 110(4) establishes a disjunctive test.2 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [13] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.3 [14] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [15] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.4 Old evidence remains old evidence, even if it is placed in a new document with a recent date. ANALYSIS [16] The Affidavit of the Appellant arose after the rejection of her claim by the RPD but the affidavit itself does not contain any new evidence. The other three pieces of evidence were attached as exhibit to the Affidavit. The hukou and the graduation diplomas were all dated prior to the rejection of the refugee claim. The documents were reasonably available for presentation to the RPD prior to the rejection of the claim. The Appellant stated in her testimony that other documents were available in China. [17] The RAD must then consider whether the Appellant could reasonably have been expected, in the circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. She presented a RIC to the RPD. The RPD questioned the validity of the document since the address on the card did not match her current address in China. She stated that she had lost her passport in Canada but she only had a report number from the police in regard to this matter. She had obtained a Canadian visitor visa but the visa application showed a mailing address for her in Beijing and all her other documents showed that she lived in Shanghai. She explained that the address in Beijing was probably the address of the business that had helped her to obtain a visa and was also the business that helped her son obtain a student visa, presumably at the same time. In reviewing her evidence before the RPD, the RAD agrees it was difficult to obtain direct clear answers to many of the questions she was asked. [18] The RPD asked her at the beginning of the hearing if it was her intention to proceed without counsel and she replied "yes". She was also asked if she wanted to retain a lawyer and she replied "no". The RPD asked her "Do you understand why you are here today." She answered "I am seeking your help to help me stay." The RPD noted that she had and signed the Basis of Claim ("BOC") form stating that she understood English. Her evidence appeared to be that her son had helped her fill out the BOC by using translation available on his computer. The RPD proceeded with a hearing on this basis. [19] The RPD noted in its decision that it had not been provided with a copy of the Appellant's hukou and that it could have assisted in establishing at least, residence for the Appellant in China. In these particular circumstances, the RAD finds that the Appellant could not reasonably have been expected to present the new evidence to the RPD. The RAD therefore, accepts the evidence. [20] The RPD only dealt with the issue of identity and did not consider the balance of the Appellant's claim. The RAD cannot make a finding under section 111(a) or 111(b) of the IRPA without hearing evidence that was before the RPD. The RAD refers the entire matter back to the RPD for re-determination. DISPOSITION [21] The appeal is allowed. Pursuant to ss. 111(1)(c)and (2) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "Ken Atkinson" Ken Atkinson September 30, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07772