TB9-12729

RAD File / Dossier de la SAR : TB9-12729 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 24, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Mark Rosenblatt Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated April 24, 2019, rejecting his claim for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that he feared returning to China because he would be detained again, given that he previously refused to accept the government's compensation offer for the expropriation of his property. [4] The Appellant's application for refugee protection was heard on March 26, 2019. By a decision of April 24, 2019, the RPD rejected the claim. The RPD found that the determinative issue was the objective basis of the risk feared by the Appellant. [5] The Appellant submits that the RPD erred by breaching natural justice and procedural fairness, erred in its assessment of the objective basis, and erred by failing to consider relevant evidence. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS The Appellant has established a serious possibility of persecution [7] The RPD found the Appellant's allegations to be credible and accepted that the government wanted to expropriate his property, that he refused the accept the compensation offered, that he was detained for a period of a week, and that his property was demolished after he left China. The RPD also found that the Appellant's fear of persecution was not objectively well-founded as he would not be considered a political opponent, on a balance of probabilities, and he is not of interest to Chinese authorities. The RPD found that the Appellant's statement that he would be detained because he wants to fight back if he returns to China2 was speculative as the Appellant did not know exactly what he would do and had not formulated a course of action. [8] The Appellant argues the RPD erred by denying the Appellant natural justice and procedural fairness by failing to convoke a resumption hearing. As counsel ran out of time at the hearing during his examination of the Appellant, he submitted an affidavit from the Appellant and requested another hearing if the RPD had questions for the Appellant about his affidavit. The Appellant submits the RPD erred by not convening a resumption hearing to examine the Appellant about its concerns about statements made in his affidavit. He argues the RPD was unfairly dismissive of the Appellant's sworn declaration to fight back against the Chinese government authorities and that the RPD denied the Appellant an opportunity to respond to concerns prior to issuing a negative decision, which constitutes a breach of natural justice and procedural fairness. With regard to the objective basis, the Appellant argues any further actions he takes to fight back against the government would be viewed as anti-government by the authorities, and would result in his detention, where physical abuse is known to occur. He also argues his opposition to the demolition of his property without fair and reasonable compensation was also a factor underlying his first detention, and not that it was only due to a scuffle, as decided by the RPD in error. [9] I have reviewed the record and conducted an independent assessment of the evidence. I am persuaded by the Appellant's arguments. [10] I find the RPD breached the principles of natural justice and procedural fairness by not holding another hearing to question the Appellant about his affidavit.3 The RPD found that given the Appellant had not formulated a course of action, it would be speculative that he would be detained in China. However, had the RPD convened a hearing and given the Appellant an opportunity to respond to its concerns, the RPD may not have made this finding. Though I do not share the RPD's concern that the Appellant had not yet formulated a plan, I find that whether or not the Appellant had a plan is not the point. The breach existed in not giving him an opportunity to respond to the RPD's concern, especially since it was specifically requested by his counsel. Further, considering the Appellant had been detained in the past on the same issue, a future detention as a result of "fighting back" is not speculative. Therefore, I find the RPD erred and its decision cannot stand. [11] I also find the RPD erred in its assessment of the objective basis of the risk feared by the Appellant. The Appellant has a history of refusing to cooperate with the authorities by repeatedly refusing their compensation offer, which resulted in his detention, all of which the RPD found credible. Information in the National Documentation Package (NDP) and submitted by the Appellant indicates that individuals who seek legal redress or protest state land expropriation often face violence from police or hired thugs, or can find themselves arrested and placed in Re-education Through Labour (RTL) Centres, which is "a form of 'imprisonment lasting up to 3 years that does not require any legal proceedings,'" or can be sent to "'black jails,' where allegations of torture and mistreatment have been documented by human rights organizations."4 Further, those who petitioned the government, faced restrictions, harassment, and detention, where they were subjected to violence.5 Based on this evidence and the Appellant's history and intentions, I find, on a balance of probabilities, that he would be viewed as anti-government by the Chinese authorities. [12] On the basis of the evidence, the Appellant's circumstances, and in considering that the RPD accepted the Appellant's allegations as credible, I find his risk in China is objectively well-founded. As the assessment of risk is forward-facing, based on the above findings, I find that the Appellant has established a serious possibility of persecution based on his perceived anti-government political opinion. [13] I also find that the issues of state protection and Internal Flight Alternative (IFA) are moot as the state is the agent of persecution and I find the Appellant's risk exists all over China. CONCLUSION [14] The RAD finds that there is a serious possibility that the Appellant would suffer persecution should he return to China because of his perceived anti-government political opinion. For this reason, the RAD cannot uphold the decision of the RPD. [15] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention Refugee. (signed) Inderpreet K. Singh I. Singh July 24, 2020 very good use of heading Date Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit RPD-1, RPD Record, Exhibit 7, Affidavit of Chang Xing Wang, p. 183. 3 Exhibit RPD-1, RPD Record, Exhibit 7, Affidavit of Chang Xing Wang, pp. 182 - 184. 4 National Documentation Package (NDP) for China (31 March 2020), item 9.4. 5 Exhibit P-2, Appellant's Record, p. 120. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12729 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français