TB5-05217

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 : TB5-05217 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 July 21, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dov Maierovitz 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 AppellantXXXX XXXX XXXX, is a citizen of China, and appeals a decision of the Refugee Protection Division (RPD) dated April 28, 2015, rejecting her claim for refugee protection. The Appellant is submitting new evidence and requesting a hearing pursuant to S.110(6). [2] The RPD hearing was held on April 27, 2015 with the RPD rendering its decision on April 28, 2015. The RPD found that the Appellant is not a Convention refugee or a person in need of protection. DETERMINATION [3] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the decision of the RPD and finds that the Appellant is a convention refugee. Background [4] The Appellant arrived in Canada on XXXX XXXX, 2012 on a student visa. Her mother arrived from China in XXXX of 2014 and soon afterwards both mother and daughter filed a claim for refugee protection based on their practice of Falun Gong. Both claims were joined and heard by the same RPD member on the same day. The RPD found the Appellant's mother to be a convention refugee based on her practice of Falun Gong. However, the RPD came to a different conclusion with respect to the Appellant and found that she was not a Falun Gong practitioner thus rejecting her claim. ROLE OF THE RAD [5] The Appellant has provided submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court 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. 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". [6] 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,2 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. [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection and will consider only the issues raised by the Appellant. 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 [8] The RPD found that the determinative issue in this claim is credibility. [9] The RPD found that the Appellant's mother "...had been practicing Falun Gong since 2010. Most of her family members have been persecuted, but she was not. The Claimant was also undertaking some very dangerous Falun Gong activities in China...3" As a result, the RPD found that the Appellant's mother to be a convention refugee based on her practice of Falun Gong. [10] With respect to the Appellant, the RPD found that she: "... joined Falun Gong practice in Canada since XXXX 2015. However, the coincidence with regard to the timing of her claim for refugee protection and the lack of evidence of her practice since XXXX of 2012, as well as her less than adequate performance of exercise #4 lead the panel to find that, on a balance of probabilities, the claimant has engaged in Falun Gong activities in Canada for the purpose of bolstering her refugee claim and not because she is a genuinely committed Falun Gong practitioner.4" The RPD then goes on to conclude that: "... the panel determines that there is not a serious possibility that the claimant would be persecuted in China or that on a balance of probabilities that she would be personally subjected to a danger of torture or face a risk to life...5 [11] Although the RAD might agree with the credibility findings of the RPD with respect to the Appellant's practice of Falun Gong, it cannot agree with the RPD's conclusion for it is contradicted by objective documentary evidence found in the Board's own country package on China. The Board's own documentation indicates that children of Falun Gong practitioners: "...have been directly targeted and tortured to death or thrown into prisons or labour camps. Hundreds of thousands of children have been forced to slander Falun Gong or, upon refusal, [have been] expelled from school.6" [12] Since the RPD found that the Appellant's mother was not only a Falun Gong practitioner but also a Falun Gong activist, the RAD disagrees with the conclusion of the RPD that the Appellant, as a child of a Falun Gong practitioner and activist, would not be subjected to persecution if she were to return to China. DECISION [13] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the decision of the RPD and finds that the Appellant is a convention refugee. [14] The Appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino July 21, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 5, para. 11. 4 Ibid p. 9, para. 27 5 Ibid p..9 para. 29 6 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package for China (31 October, 2014), Item 12.29. See also items 12.27 and 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05217