TB5-03268

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 : TB5-03268 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 June 1, 2015 Date de la décision Panel Roslyn Ahara 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 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 (the Appellant), a citizen of the Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is requesting that the RAD find him to be a Convention refugee, or in the alternative, the matter be referred back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is allowed. Pursuant to ss. 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant's claim is based on his Falun Gong activities, which began in XXXX XXXX XXXX 2013. On XXXX XXXX, 2014, his practice group was allegedly raided by the Public Security Bureau (PSB), nevertheless, he was able to escape to a great-aunt's home where he went into hiding. [4] On XXXX XXXX, 2014, the PSB visited the Appellant's parents' home and informed them that three practitioners had been arrested, including XXXX XXXX. On XXXX XXXX, 2014, the PSB left a summons at his parents' home. [5] With the help of a snakehead, the Appellant left China went to Hong Kong, South Korea and then Hawaii, where he was admitted into the United States (U.S.). He then travelled to Seattle, where he crossed into Canada illegally and made an inland refugee claim. ROLE OF THE RAD [6] The Appellant has questioned the applicable standard of review. Counsel submits that the reasoning in Huruglica1 and Kurtzmalai2 should be applied. The Federal Court decision in Huruglica3 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states, in paragraphs 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." [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi4 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. COUNSEL'S SUBMISSIONS [8] Did the RPD err in its credibility findings? Fraudulent Application for a US Visa [9] The RPD noted evidence contained in the NDP package5 with respect to the prevalence of fraudulent documents. It found, on a balance of probabilities, that the information the Appellant provided to the US authorities to obtain his visa was, in fact, truthful. This was contrary to the Appellant's testimony that he had provided erroneous information, on the advice of the snakehead with respect to his employment. The RPD concluded that the Appellant was, in fact, a XXXX managerXXXX XXXX XXXX XXXX XXXX XXXX company, as opposed to a farmer, otherwise the US authorities would not have issued the visa. This led to a negative inference by the RPD with respect to the Appellant's overall credibility. [10] The Appellant submits that the RPD's finding that he did not make a fraudulent application for a US visa in order to facilitate his exit from China has no apparent evidentiary or logical basis. He argues that it does not make sense to say that on the one hand it is difficult to screen documents in China, and therefore, the US authorities would have been able to properly assess the documents, rather than the opposite that it is more likely that it follows that the US authorities would not have been able to verify whether the documents were fraudulent. In other words, counsel submits that the RPD's inverted reasoning is arbitrary and cannot be sustained. The Appellant argues that this finding caused the RPD to dispense with the presumption of truthfulness which would otherwise govern. [11] The RAD concurs with the Appellant that there is no reason to doubt his oral testimony wherein he voluntarily testified that he had provided false information to effect his exit from China to the U.S. The RAD finds that the RPD was speculating when it made this finding and concurs that there was no evidentiary basis upon which to make this finding. Failure to make a claim in the US and the illegal entry into Canada [12] The Appellant left XXXX XXXX on XXXX XXXX, 2014. He traveled to Hong Kong and then to Hawaii via South Korea, and was admitted to the US on XXXX XXXX, 2014. From the US, he entered Canada illegally through XXXX on XXXX XXXX, 2014. The RPD asked the Appellant why he had not made a refugee claim in the US, given his legal status there. His response was that he was aware of the ability to do so however, he had neither family nor friends in the US and wanted to come to Canada where his uncle's friend resides. The RPD questioned why the Appellant would risk deportation when entering Canada illegally. Since the Appellant had the opportunity to make a refugee claim both in Hawaii and in Seattle, with legal status, the RPD drew a negative inference with respect to the Appellant's overall credibility. [13] The Appellant submits that the RPD ignored the fact that the smuggler had told him that had he made a refugee claim in the US, he would be detained and at a higher risk of deportation back to China. Moreover, the Appellant submits that in light of the fact that he had a contact person in Canada, but knew no one in the US, he preferred to come to Canada. The Appellant submits that at all times he was acting under the guidance of a smuggler and therefore, followed his instructions. Accordingly, the Appellant argues that the RPD had no valid reason for presuming that his sworn testimony on this issue was not true. [14] After reviewing the transcript of the proceedings, the RAD finds that there was insufficient evidence to suggest that the Appellant ever had the intention of pursuing residency in the US. He was able to secure a US visa, he had a contact person in Canada, and the snakehead, whose instructions he was following, cautioned him against making a refugee claim in the US. Accordingly, the RAD finds that the credibility in this regard is not sustainable. Failure to seek status in South Korea [15] The RPD found that once the Appellant was aware of the legality of Falun gong in South Korea while on a four day visit, it would be expected that he would have made inquiries of the possibilities of remaining there, and since he did not, this detracted from his overall credibility. [16] The Appellant submits that subsequent persecution after re-availment does not preclude an individual from making a successful refugee claim.6 It is submitted that this vacation took place prior to the events which gave rise to the Appellant's fear of persecution in China. At the time of his trip, it is argued the Appellant was not known to or wanted by the PSB. [17] The RAD finds that the RPD's credibility finding in this regard has no merit. The incident, which led to the Appellant's departure from China, occurred after his visit to South Korea. The RAD also notes that this visit was a mere four-day group holiday, and there was no reason whatsoever that the Appellant should have aborted this trip, left his entire family in China, to make a claim or to inquire about the possibility of remaining there when at that time, he was not being pursued.. Accordingly, the RAD finds that this credibility finding is not sustainable. Identity as a Falun Gong practitioner [18] The RPD did not accept the Appellant's lack of inquiry or knowledge with respect to the Falun Dafa Association of Canada (FDAC). The RPD noted that since the FDAC is the only official Falun Gong organization in Canada, it would have been the most reasonable place where an individual like the Appellant could ask for assistance. Accordingly, the RPD drew a negative inference with respect to the Appellant's lack of knowledge and effort to contact the FDAC. [19] The Appellant submits that the negative inference drawn by the RPD with respect to the Falun Data Association of Canada is unsustainable. The Appellant submits that he had been in Canada for less than five months, however, he was attending weekly practices with 12 other practitioners, and the mere fact that he had not contacted the Falun Dafa Association is simply not material. [20] The RAD concurs with the Appellant that the RPD's finding is without merit. It is not justifiable to make a finding that after a mere five months the Appellant, coming from an entirely different culture, would seek out an association when such an entity does not exist in China. After reviewing the audio recording of the proceedings, the RPD was fixated on this question and asked it at least three times. For example, when the Appellant went to buy a book, he was questioned as to why he did not at that time inquire about an association, to which the Appellant responded "I went to buy a book". Accordingly, the RAD finds that this credibility finding, which related to the Appellant's sur place claim, is not sustainable. Sur place claim [21] The RPD did not take issue with the Appellant's knowledge of Falun Gong, however, given its credibility findings, questioned the Appellant's motives in participating in Falun Gong since his arrival in Canada. The RPD found that there was no evidence to indicate that the Appellant's actions in Canada have come to the attention of the Chinese authorities, and found that the Appellant was not a refugee sur place. [22] The Appellant submits that the foregoing findings were already tainted by the RPD's previous erroneous credibility analysis. Moreover, the Appellant submits that the Chinese security apparatus utilizes facial recognition technology to identify people of interest. It is argued that by virtue of his Resident Identity Card, the Chinese authorities are able to track practitioners in Canada and have the technology to do so. [23] The RAD finds that the credibility findings with respect to the Falun Dafa Association did, in fact, taint the RPD's credibility findings with respect to this aspect of the testimony. Having not made a finding that the Appellant was not a Falun Gong practitioner in China, the RAD finds that there was insufficient evidence upon which to make this sur place finding and therefore it is not sustainable. Corroborative evidence [24] The RPD found that the medical records and the jail visiting card for the Appellant's cousin did not establish that the Appellant is a Falun Gong practitioner. It also questioned the authenticity of the summons, due to lack of security features and due to earlier credibility findings, and therefore, accorded little weight along with the fact that there are reports of widespread fraudulent documents in China. [25] The Appellant submits that to reject these documents on the basis of easily obtainable fraudulent documents is erroneous and cites Jiang7 in support of his argument. It is further argued that the documents have security features in the form of official seals from the respective issuing government institutions and cites Zheng8 in support of this argument. Regardless, the Appellant submits that the RPD expressed no concerns at the hearing in this regard, and therefore, he was not afforded the opportunity to make any comments in this regard. [26] The RAD finds that in light of the unsustainable findings by the RPD, it was erroneous not to have considered the documents. Moreover, if the RPD believed the summons to be fraudulent, it was incumbent upon it to point out the deficiencies to the Appellant to afford him the opportunity to make comment. [27] The RAD concurs with the RPD that being able to respond to Falun Gong questions and attending practice sessions, does not necessarily mean that the Appellant is a genuine Falun Gong practitioner. However, the RAD finds that the RPD did not conclude that that the Appellant was not a Falun Gong practitioner in China, nor did it make a finding that the PSB were not in pursuit of her. In light of the credibility findings which the RAD has found to be unsustainable, the decision of the RPD cannot stand. [28] This appeal is allowed. Pursuant to ss. 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara June 1, 2015 Date 1 Huruglica v. Canada (MCI) 2014 FC 799, at paras 37, 54-55. 2 Kurtzmalai v. Canada (MCI), 2014 FC 1072. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 5 Exhibit RPD-1, RPD Record, National Documentation Package for China (NDP) item 2.3, section 33.09. 6 Gurusamy v. Canada (MCI), 2011 FC 990. 7 Jiang v. Canada (MCI) 2014 FC 180. 8 Zheng v. Canada (MCI), 2008 FC 877. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03268