TB6-01595

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 : TB6-01595 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 April 20, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leonard H. Borenstein 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] The Appellant, XXXX XXXX, a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated January 15, 2016, rejecting her claim for refugee protection. The Appellant is not submitting new evidence and is not requesting a hearing. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refers the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee. The RAD hearing was held over three sittings: August 10, 2015, September 28, 2015 and December 7, 2015. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. Background [3] The Appellant fears returning to China because she fears persecution on account of being a Falun Gong practitioner. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 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. The Court stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. MERITS OF THE APPEAL [6] The RPD found that the main issue was credibility. The Appellant submits that the RPD erred in its credibility assessment. [7] The RAD will assess the issue of credibility. CREDIBILITY [8] The RPD found that: a) the Appellant is a citizen of China b) that she was employed as a minor employee at a XXXX XXXX c) that she left China on XXXX XXXX, 2015 [9] The RPD found that the Appellant was not credible with respect to: a) The number of passports that were issued to the Appellant b) The PSB raid of the Appellant's Falun Gong group c) The summons from the Chinese authorities issued to the Appellant with respect to her practice of Falun Gong d) Her ability to overcome the Chinese exit controls e) Her knowledge of Falun Gong f) Her practice of Falun Gong in Canada [10] The question of the number of passports which were issued to the Appellant is not of any evidentiary relevance to the RAD and therefore the RAD will not deal with it. [11] The Appellant does not challenge the RPD findings that the summons is a fraudulent document, and that the Appellant, if she truly had been sought by the Chinese authorities, could not have left China undetected due to the Golden Shield controls. The RAD, therefore, accepts the RPD finding that the Appellant's summons was fraudulent and that she was not sought by the Chinese authorities given her undetected exit from China. [12] The RPD drew a negative inference from her account of the Public Security Bureau's (PSB) raid. The Appellant submits that this conclusion on the part of the RPD is purely speculative.2 The Appellant alleges that her Falun Gong group was raided by the PSB on XXXX XXXX, 2015. She was able to escape the raid and went into hiding until XXXX XXXX, 2015 when she left China. The Appellant alleges that the day after the raid, on XXXX XXXX, 2015, the PSB went to her home to serve her with a summons for her involvement in the Falun Gong group. [13] As previously stated, since the Appellant did not challenge the RPD credibility finding with respect to the summons, the RAD agrees with the RPD's conclusion that the summons is a fraudulent document. The negative finding with respect to the summons also has a negative evidentiary consequence for the allegation that the PSB raided the Appellant's Falun Gong group. The Appellant alleges that the summons was delivered to her house by the PSB the day after the alleged raid. In fact, the document presented by the Appellant alleges that she is being sought by the authorities for her involvement in the Falun Gong practice. As the summons is fraudulent, it is also logical to conclude that there was no raid of a Falun Gong group which had resulted in the issuing of the summons for the Appellant. The RAD, therefore, concludes that on XXXX XXXX, 2015, the PSB did not raid any Falun Gong Group. [14] Even with all of these credibility findings, the RAD still needs to consider if the Appellant is truly a Falun Gong practitioner. The RPD questioned the Appellant on her knowledge of Falun Gong and drew a negative inference from her inability to answer the questions. The Appellant submits that the RPD did not take into account all of the Appellant's testimony when arriving at its conclusion.3 [15] The Appellant provided photographs showing her distributing Falun Gong material in Canada and a letter from another Canadian Falun Gong practitioner vouching for the Appellant's Falun Gong practices. The RPD found that this evidence did not corroborate her practice as a Falun Gong member in Canada. The Appellant only challenges the RPD's rejection of the letter.4 [16] Given the credibility concerns outlined above, especially the fact that the Appellant has submitted a fraudulent document to the Board in the form of a police summons from China,5 the RAD agrees with the RPD that the Appellant has not corroborated her practice of Falun Gong. Being able to answer questions with respect to the practices and exercises of Falun Gong does not per se indicate that the individual is a true practitioner of Falun Gong. Such knowledge can be derived from books or the internet. With respect to the letter, the RAD finds that it was submitted to embellish the Appellant's claim. DECISION [17] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee nor a person in need of protection. [18] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino April 20, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at p. 181, para.22. 3 Exhibit P-2, Appellant's Record, at p. 180. 4 Exhibit P-2, Appellant's Record, p. 180, para. 21. 5 See Osayande vs. M.C.I. 2002 FCT 368 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01595