TB3-09319

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 : TB3-09319 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 March 20, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 (the Appellant) is a citizen of the People's Republic of China (China). He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be referred back to the RPD to be re-determined by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the Appellant's refugee claim to the Refugee Protection Division for re-determination by a differently-constituted panel. The appeal is allowed. BACKGROUND [3] The Appellant alleged he has been a Falun Gong practitioner since XXXX 2005. On XXXX XXXX XXXX 2013, he received a call to inform him that a fellow practitioner had been arrested by the Public Security Bureau (PSB). The Appellant went into hiding and, with the help of a smuggler, he left China and arrived in Canada on XXXX XXXX XXXX 2013. Subsequently, the Appellant received a call from his wife that the PSB wanted to take the Appellant for interrogation in regard to his Falun Gong activities. [4] The Appellant's application for refugee protection was heard on August 26, 2013, and it was rejected in a decision of November 22, 2013. The RPD cited a number of credibility concerns and also actions that reflected a lack of subjective fear. On the basis of these concerns, the RPD concluded that the Appellant was neither a Convention refugee nor a person in need of protection. [5] The Appellant submits that the RPD made erroneous credibility findings and erred in finding the Appellant lacked a subjective fear of persecution in China. The Appellant asks the RAD to set aside the RPD's decision and substitute its own determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the RAD remit the matter back to the RPD to be re-determined by a differently-constituted panel. ANALYSIS Standard of Review [6] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [7] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [8] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (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. [9] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination [10] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [11] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [12] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [13] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [14] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [15] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [16] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [17] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [18] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [19] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [20] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [21] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 THE RPD'S FINDINGS [22] The Appellant argues that the RPD made various errors in its assessment of his evidence and his credibility, and in particular his identity as a Falun Gong practitioner. [23] The RPD's reasons emphasize the Appellant's return to China after a number of trips to Malaysia, the Philippines and the Republic of Korea. The RPD found that the Appellant's repeated re-availment when the Appellant was aware of the serious consequences if he were identified as a Falun Gong practitioner by Chinese authorities, and also after the Appellant had made two failed attempts, with the help of a smuggler, to obtain a United States visa so that he could be in "a free practice environment" is a course of action inconsistent with a subjective fear and seriously undermines the claimant's credibility. In addition, the RPD found that the Appellant's actions in this regard is determinative of his claim, and found as well that the Appellant is not a Falun Gong practitioner, that he is not being pursued by Chinese authorities, and that his general lack of credibility extends to all relevant evidence emanating from his testimony. [24] The Appellant submits that these findings were fundamentally misguided. The Appellant notes that these trips all took place prior to the events giving rise to his fear of persecution in China. The Appellant further notes that he explained to the RPD that he returned to China because nothing had yet happened to him. The Appellant cites, in this regard, the Federal Court decision in Gurusamy,17 in which the Court stated that "subsequent persecution after re-availment does not preclude a person from making a claim for refugee status without being faced with the re-availment argument". The Appellant argues the significance of the RPD's findings in this regard because these findings were fatal to the rest of his claim in that it led to the RPD's rejection of all of his allegations, including his identity as a Falun Gong practitioner and his pursuit by Chinese authorities. [25] The RPD emphasized that the Appellant's testimony indicated his awareness of his jeopardy if he were identified as a Falun Gong practitioner by Chinese authorities before he traveled and returned to China. In addition, the RPD noted the Appellant had attempted to obtain a United States visa on two separate occasions through the use of a snakehead in order to live in a "free practice environment'. In this context the RPD found it was not reasonable that the Appellant would not have made an effort to inform himself about the options available to him when he traveled outside China. [26] The RAD finds that the Appellant's knowledge of the severe penalties he might face if he were discovered to be a Falun Gong practitioner by Chinese authorities, and as well the Appellant's efforts to obtain a United States visa with the help of a smuggler on two occasions prior to his travels to South Korea, Malaysia, and the Philippines, distinguishes this matter from that considered in Gurusamy.18 The RAD finds that the RPD's finding that the Appellant's actions, in regard to his return to China on five different occasions, even though they preceded the alleged incident that caused him to leave China and travel to Canada, is a course inconsistent with a subjective fear and undermines the Appellant's credibility, is reasonable. However, the RAD finds that that RPD's further finding that the finding above is determinative, that the Appellant is not a Falun Gong practitioner, that he is not being pursued by Chinese authorities, and that there is a general lack of credibility that extends to all relevant evidence emanating from the Appellant's testimony, is not reasonable. [27] The RAD finds that the RPD did not provide a sufficient evidentiary foundation for its sweeping finding concerning the Appellant's general credibility and in particular his Falun Gong identity. The RAD notes in this regard that there are a number of possible credibility concerns that were not addressed by the RPD in its reasons. These include the apparent lack of medical documentation and the Appellant's apparent failure to seek further medical attention when his health problems persisted before turning to Falun Gong; the three-month delay between the alleged arrest of a fellow practitioner and the PSB visit to his home; the lack of follow up by the PSB when they allegedly wanted to interrogate him regarding his Falun Gong practice; the lengthy delay in leaving China; and the coincidence of the PSB visit nine days after the Appellant's arrival in Canada. [28] The RPD considered the Appellant's sur place claim and questioned the Appellant regarding the reasons he put his family at risk by participating in a Falun Gong demonstration in front of the Chinese Consulate in Toronto. The Appellant explained he was a Falun Gong follower. The RPD found, on the basis that it had already found the Appellant not to be a credible witness, that he had participated in this demonstration only to support a fraudulent claim for protection. [29] The RPD further questioned the Appellant as to whether the PSB had returned to his home after the first visit in which the PSB indicated they wanted to question him. The Appellant responded that his wife had not informed him. The RPD found it was unreasonable that the Appellant did not ask his wife whether the PSB had returned and that the lack of a reasonable explanation undermined the Appellant's general credibility. The RPD further found, in the context of lack of evidence, the Appellant had not come to the attention of Chinese authorities as a result of his Falun Gong activities in Canada. [30] The Appellant argues the RPD made erroneous credibility findings in regard to the sur place aspect of this claim. The Appellant further argues that the RPD had already determined that the Appellant was not a credible witness, that none of his evidence and documents were trustworthy, and as a result the RPD's findings regarding the Appellant's sur place claim were tainted. In particular, the Appellant argues that it was the duty of a Falun Gong practitioner to spread the truth and attend demonstrations. In this regard the Appellant cited the Federal Court's decision in Weng,19 in which the Court stated "to criticize the Applicant for conduct carried out within the relative safety of Canada is inconsistent with the very existence of sur place protection. [31] The RAD finds that the RPD erred in its assessment of the Appellant's sur place claim. The RAD has found that the RPD's negative credibility finding concerning his re-availment extends to all relevant evidence emanating from the Appellant's testimony is not reasonable. In that context, the RAD agrees with the Appellant's argument that the RPD's sur place claim analysis is tainted. The RAD further finds in this regard that the RPD has failed to consider the Appellant's sur place claim on its own terms, and that the RPD's reliance on a negative credibility finding concerning the Appellant's participation in a Falun Gong demonstration is an insufficient and unreasonable basis for a rejection of his sur place claim. [32] The RAD has not seen or questioned the Appellant and is therefore not in a position to make its own credibility findings 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. [33] For these reasons, the RAD cannot substitute its own determination for that of the RPD. [34] Pursuant to section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. The Appeal is allowed. (signed) 'Milton Israel' Milton Israel March 20, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Gurusamy, Baskaran v. M.C.I. (F.C., no. IMM-7652-10), Russell, August 11, 2011, 2011 FC 990 18 Ibid. 19 Weng v. Canada (MCI), (F.C.T.D., no. IMM-1536-12), October 25, 2012 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09319