TB5-03679

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 : TB5-03679 TB5-03680 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 24, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M. Lewis Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX(Appellant) and XXXX XXXX(minor Appellant) are citizens of China. They appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of this appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that they are Convention refugees or persons in need of protection, or refer the matter back to the RPD for re-determination. In the alternative, they request that they be granted an oral hearing before the RAD. Determination [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant alleged before the RPD that she and her husband possess a parcel of land near a road which was built in 2009. The son of the head of the village, Mr. XXXX, [no relation with the Appellant's husband] wanted her land for business purposes and proposed to the Appellant a trade, but the Appellant refused as she had had no intention of changing location or selling the land. [4] According to the Appellant's story, Mr. XXXX would not take no for an answer and was determined to get her land. On XXXX XXXX, 2014, he returned to the Appellant`s property accompanied by five men armed with shovels and hoes. They started destroying the crops and digging the soil, undeterred by the Appellant's protests. [5] The Appellant maintains that they assaulted her, mistreated her and took her clothes off, inviting the people of the village to "come and see her body and breasts" and saying "this woman can be played with by any man". The Appellant alleges that she complained to the local Public Security Bureau (PSB) but was told that she and her husband were troublemakers. Two days later, the Appellant's mother-in-law advised her that Mr. XXXX, accompanied by the village security guards, appeared at the home of the Appellant, searched the premises, found religious material and accused the Appellant of being a follower of the Almighty God religion. [6] According to the Appellant, the PSB also visited her home and told her mother-in-law that the Appellant had to report the next day. When she failed to report on XXXX XXXX, 2014, the PSB left a summons with her mother-in-law. The Appellant maintains that her son was suspended from school on the same day. [7] The Appellant contacted a smuggler and made arrangements to leave her country. The claimants arrived in Canada on XXXX XXXX, 2015 and claimed refugee protection at the Port of Entry. At the hearing, the Appellant also made a sur place claim as a member of a Christian church: the Living Stone Assembly. [8] The Appellant's application for refugee protection was heard on March 16, 2015. In a decision of March 31, 2015, the RPD rejected the claim, finding the Appellant was not credible, and she had attended a Christian church for the purpose of supporting a contrived claim. [9] The Appellant submits: 1. The RPD erred by failing to consider evidence that went to the heart of the claim. 2. The RPD failed to consider the Chairperson's Gender Guidelines.1 3. The RPD engaged in a microscopic review of the evidence. 4. The RPD misconstrued evidence. 5. The RPD erred by determining the Appellant would not be able to leave China using her own passport. Oral Hearing [10] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no new evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [11] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] The RAD has not admitted new evidence in this appeal. As such, the RAD must proceed without a hearing. ROLE OF THE RAD [13] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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". [14] 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 Alyafi 3 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. [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons 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 [16] The RPD found that the determinative issue in this claim was credibility of the Appellant and her identity as a member of a Christian Church. Uncontested Credibility Findings [17] The Appellant does not contest the RPD's adverse credibility findings concerning her religious identity in Canada. The RAD notes that the RPD found that the Appellant was not a follower of a Christian religion and has attended church only to support a fraudulent refugee claim. Exit From China [18] The RPD found that the Appellant would not be able to leave China on her own passport if she was wanted by the PSB. The Appellant submits that the RPD's finding is speculative and is contrary to well accepted case law. The Appellant further submits that Federal Court case law has resolved the issue of the plausibility of one's ability to leave China on his own passport. The RAD is not persuaded by the Appellant's submission. [19] The Appellant argues that the documentary evidence relied upon by the RPD is inconclusive with respect to the Golden Shield project and refers to the Federal Court decision in Sun4 and Zhang5 to support her argument. The RAD notes that the circumstances in this appeal can be distinguished from the facts in Sun. The RAD notes that in the Sun matter, the RPD's decision was based on the documentary evidence that existed at that time with respect to the existence and expansion of the national Chinese policing database used by the PSB at ports of entry and exit of the country. The RAD notes that updated references to the Golden Shield Project now exist in the National Documentation Package,6 which was relied upon by the RPD in this case. [20] The RAD is aware that corruption in China exists and that there are well established smuggling networks. The RAD notes the more recent documentary evidence confirms that the Chinese government has a national computer network known as the Golden Shield Project,7 and the PSB has access to a national policing database, which includes information about criminal fugitives and information on passports and exit and entry. The RAD's review and assessment of the evidence makes it clear that the police do have a national database that is used to screen passengers at airports and that there are a number of checks and balances in place to ensure persons who are wanted by the police are prevented from traveling abroad. [21] The RAD finds that in light of the Appellant's allegation that the PSB have continued to show interest in pursuing her and that they have issued a formal document indicating their interest in her, it is reasonable to expect that the local authorities would have entered information into the national police database to further their efforts to apprehend her. [22] The RAD's own assessment, through additional documentary evidence, indicates that the capabilities and scope of the Golden Shield are vast. An undated article on the website of the Ministry of Public Security, entitled "Deepening the Implementation of the 'Golden Shield' Project states: that all police units nationwide have access to eight public security databases, including the "National Basic Population Information Database" (China n.d.). Also accessible through the databases is information on household registration [hukou], border exit and entry, road traffic, and criminal investigations (ibid.).8 [23] In addition, the representative of the Laogai Research Foundation provided the following information: The Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multi-pronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents. (26 Feb. 2014)9 [24] A July 2012 article published by the state-run Xinhua News Agency stated that police departments have established a database for criminals around the country, while the procuratorates have also started the inquiry system for bribery records.10 [25] The RAD further notes that the Appellant has submitted that the Zhang decision found that it would not be implausible that a person who is wanted would be able to travel on his own passport. The Appellant does not cite specific documentary evidence, but the RAD has reviewed the current documentary evidence on the record, specifically the UK Home Office, Country of Origin Information Report, sections 33.06 and 33.07,11 which confirms the involvement of corrupt Chinese officials in the smuggling of persons being sought by the Chinese authorities. A review of the documentary evidence provides evidence that corrupt officials are involved in the smuggling of people through border controls. The RAD notes that section 33.06 reveals that there have been some dated cases of corrupt officials involved in the production of genuine and false identity documents for money or to smuggle members of their own family abroad. However, the evidence does not speak to the pervasiveness of the practice nor does it provide any indication that the same circumstances exist today. As reported by the Canadian Immigration and Refugee Board (IRB) on 8 September 2005, a professor of criminal justice at Rutgers University, who has written on Chinese human smuggling, told the Research Directorate that, in his opinion, "it is pretty easy to obtain all kinds of fake documents in China, including identity documents, birth certificates, university diplomas and hospital documents." Furthermore, citing a 2002 report by the Australian Institute of Criminology, the IRB reported that corrupt Chinese officials provide "both genuine and fraudulent documents in exchange for money, or... for the migrant smuggler's promise to smuggle a member of the corrupt official's family abroad." [26] The RAD also finds that section 33.07 does not offer persuasive evidence that corrupt officials are involved in the smuggling of people being sought by the Chinese authorities. Additionally, the documentary evidence cited by the Appellant is based upon the speculation of one observer, rather than substantiated facts. [27] A representative of the New York-based Human Rights in China (HRIC) states that: [i]t is completely conceivable that corrupt officials could be involved in the illegal production and sale of fraudulent [identity] documents. Reports to this effect circulate regularly, sometimes involving passports as well... The fake documents would be most useful to people with active arrest warrants trying to evade police notice, or for obtaining employment or housing... [28] The RAD additionally notes that the circumstances in this appeal can be distinguished from the facts in Zhang. The RAD notes that in the Zhang matter, the RPD engaged in the speculation that hundreds of officials would have to be bribed. In the case at hand, the RPD did not engage in such speculation. The RAD notes that the record shows that the Appellant's testimony was that the smuggler had talked to a customs official. The RAD finds it implausible that the Appellant's smuggler could have bribed all of the exit control officials at the Shenzhen airport in order to facilitate her safe exit from China. [29] Furthermore, the decision in Zhang was based on the documentary evidence that existed in 2008 and made no reference to the Golden Shield Project, which was relied upon by the RPD in this case. In the Zhang matter, the reviewing court made reference to a 2001 Response to Information Report (RIR), which addressed security and exit control procedures at Chinese airports. The documentary evidence before the RPD on issues of security and exit control is contained in RIR CHN102869.E dated July 2008. The RIR states in part: In March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations (Airport International 17 Mar. 2008; Xinhua 27 Mar. 2008). The regulations instruct airport security to conduct a more thorough examination of hand luggage, to ban liquids on flights (ibid.; Airport International 17 Mar. 2008), and to have passengers remove their shoes for security checks (Xinhua 27 Mar. 2008). The regulations additionally prohibit "easy boarding" services, which had previously allowed passengers to obtain faster security checks and priority boarding (ibid.; Airport International 17 Mar. 2008). According to a 27 March 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide "accurate," "complete" and "timely" information on passengers and airline staff to the Chinese border authorities (Xinhua 27 Mar. 2008). The requested information reportedly includes name, nationality, gender, date of birth and passport number and expiration date (ibid.).12 [30] Based on the foregoing, it is clear that security practices have become increasingly stringent in China in recent years and that there are systems now in place to identify persons leaving the country. [31] The RAD has considered that the Appellant used a smuggler to exit China. However, the RAD finds that the objective evidence concerning the Golden Shield-and other border controls in effect in China-is compelling and convincing. While it might be possible for a smuggler to bypass some of the security controls, the RAD finds that based on the evidence in the record, it is highly unlikely that the Appellant could have bypassed all of the security controls in place, particularly in light of the Appellant's allegations that there was a summons issued for her arrest. [32] The RAD finds that the RPD is entitled to make reasonable findings based on implausibilities, common sense, and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.13 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.14 In this case, there is an evidential foundation for the RPD's findings. After its own review and assessment of the evidence, the RAD agrees with the RPD's findings in this regard. As such, the Appellant's argument fails. In addition, the RAD finds the Appellant's ability to leave China on a genuine passport indicates she is not being sought by the authorities in China and undermines the credibility of the basis of her claim. Failure to Consider Evidence Summons [33] The RPD found the summons and school dismissal letter15 submitted by the Appellant were forgeries. The Appellant submits the RPD failed to consider the summons tendered as support for her allegations. The RAD is not persuaded by the Appellant's argument. [34] The Appellant further submits the RPD, "never so much as mentions the summons in its Reasons". The RAD, in reviewing the record as well as the audio recording of the hearing, notes the RPD clearly did make some minimal inquiries in respect of the summons, but there was no reference to the school dismissal letter. [35] The RAD presumes that the RPD considered the entire record, and thus the Appellant bears a high burden of persuasion that this is not the case. The RAD finds in reviewing the RPD Reasons that no explanation was provided as to how the RPD has arrived at the finding that the documents are forgeries. The RAD notes it must consider not only the reasons offered by the RPD but also the outcome reached.16 However, even where 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.17 [36] The RAD's own review of the document has not revealed any perceptible errors on the face of the document. The RAD does have cause to question the fact that the Appellant has stated that the PSB left the summons with her mother-in-law. Documentary evidence18 indicates the individual who receives the summons would sign for its receipt. The RAD notes the summons has no signature indicating receipt. Further to this, the Appellant has confirmed in her BoC that she did not respond to the summons. The Appellant further states in her BoC narrative that the PSB have continued to pursue her. The RAD notes that the documentary evidence19 states the summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. The record does not indicate that a warrant for the arrest of the Appellant has been issued. The RAD has considered that it is reasonable to believe that a subsequent document would have been issued given that the Appellant's statements indicate the PSB are continuing to pursue the Appellant and have an interest in following procedure. [37] The RAD also notes that the RAD's earlier findings with regard to the Appellant's ability to travel on her own passport undermines her allegation that a summons was issued for her arrest. The School Dismissal Letter [38] The RAD, in assessing the genuineness of the information on the school dismissal letter,20 notes that aside from a red stamp, the document is produced with no known security features and is printed on plain stock. The letter is unsigned and no notarization that this is an authentic document is evident. The RAD notes a letter such as this could be formatted on any personal computer using basic word processing techniques. As well no samples are available in the IRB country documents for comparison to valid original documents. [39] The RAD notes that the Appellant's BoC narrative and testimony confirm she was able to obtain and utilize fraudulent documents in order to depart from China. The RAD further notes that documentary evidence21 indicates fraudulent documents are readily available to Chinese refugee claimants. In this instance, while the RPD's reasons are not clearly expressed in its assessment of the Appellant's summons, there are, nevertheless, reasons, which allow the RAD to assign little evidentiary weight to these documents. [40] Although not addressed by the Appellant, the RAD finds the RPD did not conduct a fulsome inquiry into these documents at the hearing leading to a number of unresolved plausibility or credibility concerns surrounding the summons and the actions of the PSB. There is insufficient information available to the RAD to fully and independently assess the authenticity of the documents and review the finding of the RPD. The RAD finds, contrary to the submission of the Appellant, that the RPD did address the summons. [41] As much as the argument of the Appellant in this instance fails, the RAD finds that the RPD has failed to provide sufficient reasons as to how they have reached a specific conclusion in this instance. The RPD has gone too far in determining these documents are fraudulent and has failed to provide sufficient reasons as to how they reached this conclusion. Nonetheless, the RAD finds, after its own review and assessment of the evidence, that it can afford little weight to these documents. The Psychological Report and Application of the Chairperson's Gender Guidelines [42] The RPD found the Appellant's testimony was not credible as a result of her: * Failure to seek medical attention following the (sexual) assault by the son of the village chief and his security guards; * Failure to hire a lawyer and complain to a higher authority; and * Failure to protect her rights as a property owner. The Appellant submits the RPD failed to consider the application of the Chairperson's Gender Guidelines22 as well as the contents of the psychological report from Dr. XXXX,23 which indicates the Appellant is suffering from post-traumatic stress disorder, panic attacks, and depression as a result of the physical and sexual attack perpetrated against her. The RAD finds that the Appellant's argument has merit. [43] The RAD notes that the RPD did address that it had considered the psychological report at the outset of its Reasons. The RAD has considered that the Gender Guidelines are an important tool in reviewing refugee claims based on gender related violence, especially when assessing credibility. The RAD further recognizes that case law establishes that there is no need for the RPD to specifically address the Gender Guidelines in a decision provided it adequately applies the principles enshrined in them. [44] The RAD in its review of the record as well as the audio recording of the hearing notes that the RPD states in paragraph 18 of its Reasons: "Furthermore, it is difficult to believe that if the Appellant had been physically and sexually assaulted by six goons, pushed to the ground, punched and kicked and suffered injuries, she would just be concerned with bruises treated with patches and not seek medical attention if for no other reason than to prove that she had been the victim of a sexual and physical assault." The RAD finds the RPD's conclusion in this matter is based on speculation that the Appellant would react in a logical and sensible manner following this assault. [45] The RPD extends the framework of these findings to address: the Appellant's failure to carry her complaint about her assault and treatment by the son of the village chief to a higher authority when her complaint was rejected at the village PSB office, her failure to hire a lawyer and her failure to assert her property rights as set out in the "Land Ownership Certificate"24 submitted in evidence. [46] The RAD finds that although the RPD provided an explanation for coming to its findings, the explanation implied that the Appellant ought to have sought care, reported the matter to a higher authority and hired a lawyer. In making these findings, the RPD essentially substituted its own standard of behaviour. While any given action may not make sense to the RPD, it very well could make sense to the Appellant at the time. There are many reasons why victims of sexual abuse may not want to initially come forward, and there are as many reasons. Which may prompt them to report their victimization. It is important to recognize that not every person reacts the same way. The RAD finds that the RPD's finding was speculative and did not fully consider the Application of the Chairperson's Gender Guidelines. As such, the RAD cannot afford deference to the RPD's credibility findings. Misconstruing Evidence [47] The RPD assigned an adverse inference given that the Appellant's husband (having made a refugee claim and receiving a negative decision) was not practicing a religion; therefore, the religious material which the Appellant alleged was found in her home did not exist. The Appellant submits that the RPD misconstrued the evidence in that the Appellant's claim and her husband's claim are based on two completely different grounds. The RAD finds the Appellant's argument has merit. [48] The RPD in its reasons states: Here too, the principal claimant manufactured this part of her story using as a foundation her husband's religious claim. However, that claim was rejected and therefore the failure of her husband's claim, impacts adversely on the reliability of the principal claimant's evidence. The panel draws an adverse inference in that, given that the principal claimant's husband was not practicing a religion, the religious material, which the principal claimant alleges was found in her home did not exist. [49] The RAD, in its review of the record, notes the Appellant alleges she was the victim of planted evidence concerning a banned religious group (Eastern Lightening). The RAD has examined the record as well as the audio recording of the hearing. The RAD further notes the Appellant did not testify that she had this information in her home, but only that she was accused of having this information. [50] The RAD notes the Appellant's BoC document25 confirms her husband made a claim for refugee protection in Canada in 2010 because of underground Christian religious beliefs. The Appellant's testimony confirmed that her husband was a failed refugee claimant. The RAD notes there was no evidence before the IRB that would confirm any additional details concerning the reasons for the Appellant's husband's negative decision. The RAD finds that the RPD's statement that the Appellant based her claim on her husband's failed refugee claim makes little sense and is not supported by the evidence in the record. The RAD cannot support the finding of the RPD in this instance. Microscopic Analysis [51] The RPD concluded based on the Appellant's statement in her Port of Entry (POE) notes, as submitted in the Minister's Delegate Section 44 Report,26 on a balance of probabilities, that the party that was interested in her land was a governing authority. The Appellant submits that the RPD was focusing on a single word "authority" in that statement-a discrepancy between the POE notes, her BoC, and testimony. The Appellant further submits "authority" could be any one associated with an individual in a position of power. The RAD finds the Appellant's argument has merit. [52] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD finds that the POE statement by the Appellant "authority trying to take land away" is not definitive of a "government authority" as the RPD suggests. Further to this, the RAD notes the RPD questioned the Appellant about what is currently happening with her property in China in her absence. Her testimony indicates the land is unoccupied and the son of the village chief has not proceeded with his plan. The RAD finds if the Appellant's issue was concerning government expropriation of her property, it is reasonable to believe the expropriation would have continued in her absence. [53] The RAD finds the RPD has made a plausibility finding that is not supported by the evidence in the record. The RAD cannot support the finding of the RPD in this instance. Summary [54] The RAD notes: * The Appellant was not a genuine member of the Christian faith in Canada. * The Appellant was able to exit China utilizing a genuine passport and this undermines her allegations of pursuit by the authorities in China. * The supporting documents (summons and school suspension letter) are assigned little evidentiary weight. [55] The RAD finds that the RPD failed to: * To fully consider the Chairperson's Gender Guidelines and the psychologist's report prior to making determinative credibility findings that are fatal to the claim. * To fully explore the Minister's Delegate Section 44 Report submissions in arriving at a finding in its Reasons. Unaddressed Credibility Concerns [56] The RAD has identified the following unaddressed credibility concerns: * The Appellant has identified the land confiscation by the son of the head of the village committee as the central component in this claim. Yet there is no corroborating documentation such as photographs or affidavits that substantiate this allegation. * The Appellant alleges that she was assaulted and stripped by the son of the head of the village and his "thugs". She states this was witnessed by a number of villagers who came to her assistance and "denounced" what they did. This forms another central component in the Appellant's claim, yet there is no evidence to corroborate this incident. * The Appellant has alleged that she traveled on her own passport and a fraudulently obtained Canadian visa, yet there is no evidence in the record from the Minister that the Appellant obtained a Canadian visa. Information from the Minister could verify if and or when the Appellant applied for and obtained this visa relative to her allegations of persecution. [57] The RAD finds the RPD has failed to demonstrate that it has fully assessed the evidence in the record and that the RPD's credibility and plausibility findings in this regard cannot be sustained. Accordingly, the RAD finds the RPD's decision must be set aside. DISPOSITION AND REMEDY [58] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the Refugee Protection Division; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [59] The RAD can only make the referral described in 111(1)(c) if it was of the opinion that the decision of 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.27 [60] The Appellant asks the RAD to substitute its own determination that she is a Convention refugee. The RAD is not in a position to do so. The RPD concluded the Appellant would not be able to depart from China if she was being sought by the PSB, and the RAD supports this finding, which undermines the basis of the Appellant's claim. The RAD has identified credibility concerns around the authenticity of the Appellant's summons and school dismissal letter. There remain significant credibility and plausibility concerns, which were not appropriately addressed by the RPD, and the RAD is therefore not able to substitute its own determination. [61] The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on her refugee claim. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellants to be Convention refugees or persons in need of protection. [62] This appeal is allowed. Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "Robert Bebbington" Robert Bebbington June 24, 2015 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, paras 54 and 55. 3 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 4Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny, March 27, 2015, 2015 FC 387. 5 Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-2703-07), Dawson, April 23, 2008, 2008 FC 533. 6 RDP's Record, National Documentation Package (NDP), for China (31 October 2014), item 10.4. 7 RPD's Record, NDP for China (31 October 2014), items 2.3, 10.4 . 8 RPD's Record, NDP for China (31 October 2014), item 10.4. 9 Ibid. 10 Ibid. 11 RPD's Record, NDP for China (31 October 2014), item 2.3. 12 RPD's Record, NDP for China (31 October 2014), Response to Information Request (RIR) CHN102869.E, dated July 2008. 13 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012, 2012 FC 1037, at 19. 14 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 15 RPD's Record, Exhibit 8, pp.815-818 16 Herrara Andrade, Luis Carlosv. M.C.I.(F.C., no. IMM-544-12), Gleeson, December 18,2012: 2012 FC 1490,, para 11. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador, (Treasury Board), 2011 SCC 62, paragraph 12. 18 RPD's Record, NDP for China (31 October, 2014), Item 9.3. 19 Exhibit RPD-1, RPD Record, NDP for China (31 October, 2014), Item .9.5 20 RPD's Record, Exhibit 8, pp.815-818. 21 RPD's Record, NDP for China (31 October, 2014), Item 3.22. 22 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 23 RPD's Record, Exhibit 9, pp.832-834. 24 RPD's Record, Exhibit 8, pp. 813-814. 25 Exhibit P-2, pp. 21-24 26 RPD's Record, p. 81 27 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03679TB5-03680