TB6-00082

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 : TB6-00082 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 Toronto, Ontario Appel instruit à Date of decision March 30, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Peter Lulic 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 AND DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to grant her appeal. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. Background [3] The Appellant alleged before the RPD that she is a convert to Christianity, and will be persecuted because of her religion upon return to China. She also claimed that she fears harm at the hands of her abusive husband and of China's family planning authorities. [4] The Appellant's application for refugee protection was heard on April 7, 2015, May 20, 2015, and October 6, 2015. By a decision of December 8, 2015, the RPD rejected the claim on the basis of credibility. It had credibility concerns because the Appellant's Basis of Claim (BOC) did not refer to a warrant which she presented to the RPD; because she was able to leave China on her own passport, despite allegedly being sought by the authorities; because the Appellant allegedly worked in Singapore in order to raise money to pay a fine with respect to the illegal birth of her daughter, but never paid that fine; and because the Appellant exaggerated her level of education in the Singapore visa application. [5] The Appellant submits that the RPD erred in its assessment of her credibility. ANALYSIS What is the Role of the RAD? [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The Appellant submits that the appropriate standard of review is one of reasonableness. [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.1 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal - that is, where there is no admissible new evidence, as is the case here - the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.2 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence - that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference -such as an overall lack of credibility, based on oral testimony - the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [16] The Appellant argues that the RPD made various errors in rejecting her refugee claim. It is not necessary for the RAD to make a determination with respect to each of those arguments, as there are two significant problems with the RPD's decision, and these are dispositive of this appeal. [17] Psychotherapist's report: The Appellant provided the RPD with what she characterizes as a "psychologist report."3 That document, in essence, finds the Appellant's allegations of past persecution as credible, diagnoses the Appellant with post-traumatic stress disorder, generalized anxiety disorder, and major depressive disorder, and advocates that she be allowed to remain in Canada. [18] The RPD gave "the psychological report little weight in terms of establishing the claimant's allegations. I note that the report is based on events that the claimant reported to the psychologist. I have determined that the claimant is not credible."4 [19] The RPD appeared to disregard the purpose and significance of a psychological report. Such an opinion does not serve primarily to corroborate a refugee claimant's allegations of past persecution; rather, it is to alert the RPD to a claimant's mental health and the impact this may have on her testimony.5 Rather than considering the Appellant's credibility through the lens of the assessment, the RPD first considered credibility, and then used the resulting deficiencies to impugn the assessment. Such an approach, if followed, ensures that no psychological report can ever explain credibility concerns, as those concerns are instead used to undermine the report. In a very recent decision, the Federal Court cautioned against this type of circular reasoning and its creation of a "Catch 22" situation: The RPD found the Applicant's story not credible; therefore, any report (or this Report in particular) cannot be given weight in terms of explaining credibility concerns if that Report is based on a non-credible story.6 The RPD's reasoning here was similar, and wrong. [20] The RPD further erred by apparently concluding that the assessment was based only on self-reporting by the Appellant, without considering what other tools were used by the assessor.7 [21] The RPD was wrong to give the report little weight for the reasons it did. The RAD, however, has conducted an independent review of the assessment, which is in fact not written by a psychologist. The author, Ms. XXXX XXXX, holds a Bachelor of Arts degree and a diploma from the XXXX XXXX XXXX in XXXX. She is a registered psychotherapist who bases her assessments on "in-depth clinical and psychodynamic interviews."8 [22] In the RAD's view, there are two significant problems with this report. The first is that Ms. XXXX is not a psychologist or psychiatrist, but nevertheless appears to communicate a diagnosis: that the Appellant exhibits "symptoms consistent with post-traumatic stress disorder, generalized anxiety disorder, and major depressive disorder."9 [23] Section 27 of the Regulated Health Professionals Act, S.O. 1991, Chapter 18 describes the communication of a diagnosis as a "controlled act," not to be performed unless the communicator is so authorized by a health profession Act, or unless the action has been delegated by a person who is so authorized. It does not appear that Ms. XXXX meets either qualification. The controlled act of diagnosis, at s.27(2)(1), is: [C]ommunicating to the individual or his personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his personal representative will rely on the diagnosis. Ms. XXXX letter clearly sets out to communicate a diagnosis, to be relied upon in these proceedings. The RAD notes that contravention of the Regulated Health Professionals Act by a psychotherapist is considered professional misconduct.10 This assessment deserves little weight, as its author is neither a doctor nor a psychologist and therefore not qualified to make or communicate a diagnosis.11 [24] Second, Ms. XXXX goes well beyond even the scope of a psychological or psychiatric report when she appears to make her own finding with respect to the Appellant's allegations of past persecution. She writes: I believe Ms. XXXX has experienced significant trauma and fear in China in the form of physical, mental, and sexual abuse that she endured at the hands of her husband. Additionally, Ms. XXXX has been exposed to tremendous fear, threat, and persecution by the Public Security Bureau (PSB) and the family planning authorities. Ms. XXXX later adds that "I have no doubt that Ms. XXXX was a victim of severe psychological, physical, and sexual abuse..." She concludes that Ms. XXXX would suffer if returned to China but would benefit from remaining in Canada. [25] It is the role of the RPD and the RAD to determine the credibility of the Appellant's allegations. Here the psychotherapist's report appears to have first strayed beyond her scope of practice--assessment and treatment12--to provide a diagnosis, and then even further to conduct a credibility analysis and risk assessment. The author of the report has inappropriately mixed opinion with advocacy, and for this reason too her report warrants little, if any, weight.13 [26] While the RPD erred in dismissing the "psychological report" for the reasons it did, this is of no consequence to the determination of the Appellant's refugee claim, as the assessment has no probative value for the reasons set out above. [27] Sur place claim: The Appellant does not fear harm in China only because of her activities and history there; she also claims to be a "firm Christian" who practices her faith in Canada.14 The RPD took little time in dismissing this aspect of her claim: I accept that the claimant has been attending a Christian church here in Canada. However, I do not accept her motives to be genuine. I have already found that she is willing and capable of deceiving authorities when she stands to gain (the misrepresentation on the Singapore work visa) and find that the claimant's attendance at a Canadian church is merely to boost her refugee claim. There is no evidence to indicate that the claimant's actions here in Canada have come to the attention of the Chinese authorities. The Federal Court Trial Division in Wang held that a sur place claim could not be maintained, when there is no evidence that the making of the refugee claim had specifically come to the attention of the Chinese authorities. I find that the claimant is not a refugee sur place.15 [28] It is important here to consider the RPD's finding with respect to the Singapore visa application referred to above. The Appellant wanted to work in Singapore, and hired an agent to obtain a visa. The visa application indicated that the Appellant has a Grade 12 education, while in fact she only has up to Grade 9. The RPD made a negative credibility finding and also reached a much broader conclusion: "that the claimant has the wherewithal to successfully deceive immigration authorities for economic reasons."16 [29] As an aside, the RAD notes that the finding with respect to the visa application is both microscopic and of little relevance to the core of the Appellant's refugee claim. Further, the RPD did not address the Appellant's explanation: that she was told by an agent that this misrepresentation was necessary in order to obtain work. What is important here, however, is the RPD's use of that minor credibility finding to address the Appellant's sur place claim. [30] To put it simply, the RPD concluded that since the Appellant falsely inflated her education level by three years in a 2007 Singapore visa application, she must be lying when she claims to be a true Christian in Canada today. This reasoning stretches logic well beyond its breaking point. [31] Even if the Appellant was not truly a practicing Christian in China, and even if none of her allegations of persecution in China are to be believed, the RPD was obligated to consider whether she has become a true Christian in Canada.17 Here there was no effort by the RPD to determine the authenticity of the Appellant's faith; few or no questions were asked in this regard, and there was no consideration of corroborating documents. As the Court stated in the case of XXXX XXXX: Having dismissed the refugee/protection claim based on events in China, the RPD had an obligation to consider the sur place claim. It gave it such cursory consideration as to fail to properly consider that claim.18 [32] None of this means that the RPD cannot import credibility findings with respect to the bona fide of a sur place claim.19 It may well be that a claimant has so many serious credibility problems that they taint the sur place portion of the claim as well. Here, however, the sur place claim was disposed of in a cursory way, based entirely on the irrelevant and microscopic finding with respect to the Singapore visa application. This was an error. [33] As few questions were asked of the Appellant with respect to her knowledge or practice of her faith in Canada, the RAD is in no position to make its own determination of her refugee claim. Although the Appellant requests an oral hearing before the RAD, she has presented no new evidence in support of her appeal, and the RAD therefore has no discretion to order an oral hearing. CONCLUSION [34] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld March 30, 2016 Date 1 X (Re), 2015 CanLII 19235 (CA IRB). 2 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 3 Appellant's Record, Page 19, Memorandum, para. 7. 4 RPD's Reasons, para. 4. 5 Mico, Aleksander v. M.C.I. (F.C., no. IMM-6477-10), Russell, July 29, 2011), 2011 FC 964, para. 49. 6 Sterling, Shereena Salijh v.M.C.I. (F.C., no. IMM-3606-15), Phelan, March 18, 2016, 2016 FC 329, para. 8. 7 Sterling, paras. 9-10. 8 RPD's Record, pages 1179-1180, Report of Ms. XXXX XXXX. 9 Ibid. 10 Ontario Regulation 317/12, under the Psychotherapy Act, 2007, S.O. 2007, c. 10, sched. R. The RAD has previously commented on psychotherapist reports such as this one in X (Re), 2014 CanLII 96038 (CA IRB), X (Re), 2013 CanLII 99308 (CA IRB), and X (Re), 2014 CanLII 95954 (CA IRB). 11 See Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, June 12, 2002, para. 13. 12 Psychotherapy Act, 2007, Sections 3 and 4. 13 See Egbesola, Moriyike v. M.C. I. (F.C., no. IMM-3058-15), Zinn, February 16, 2016, 2016 FC 204, para. 13. 14 RPD's Record, p. 18, Basis of Claim form, Question 2(b). 15 RPD's Reasons, paras 52-53. 16 RPD's Reasons, paras. 47-48. 17 Chen, Hongzhen v. M.C.I. (F.C., no. IMM-1956-13), Russell, July 28, 2014, 2014 FC 749, paras. 58-59. 18 Yu, Xiufang v. M.C.I. (F.C., no. IMM-6845-13), Phelan, February 2, 2015, 2015 FC 167, para. 16. 19 Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny, March 27, 2015, 2015 FC 387, para. 29. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-00082