TB5-00014

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 : TB5-00014 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a.XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 3, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stacey Margaret Duong 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] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant alleged before the RPD that, upon return to China, he will be arrested by the Public Security Bureau (PSB) because he is a Falun Gong practitioner. He also alleged that he fears the smuggler that assisted him in leaving China because he owes money for his services. [4] The Appellant's application for refugee protection was heard on September 24, 2014 and October 7, 2014. By a decision rendered orally on October 7, 2014, the RPD rejected the claim. The RPD found that the Appellant was not being sought by the PSB in China and his Falun Gong activities in Canada were for the purposes of bolstering his claim. Specific findings included the following: 1) A negative inference was drawn with respect to the Appellant's credibility from inconsistencies in his evidence regarding when he first met the smuggler who assisted him in leaving China and in his evidence regarding the instructions the smuggler gave him to exit China. The RPD found that the Appellant did not use the services of smuggler to exit China. 2) The RPD found that the Appellant leaving China using his own identity document supported its finding that the authorities are not concerned with him and it undermined his identity as a Falun Gong practitioner who is wanted by the PSB. 3) No weight was given to a summons provided by the Appellant since it did not state where and when he was expected to appear. The RPD also noted anomalies in the Appellant's evidence regarding the requirement to report to the PSB within a specified amount of time. It noted that the summons had no security features and that fraudulent documents are readily available in China. 4) Given credibility concerns with his experiences with the smuggler, the extensive security at Beijing Airport and the concerns regarding the summons, the RPD found on a balance of probabilities that the Appellant is not being sought by the PSB and that it further undermined his identity as a Falun Gong practitioner in China. 5) The RPD drew a negative inference with respect to the Appellant's credibility and found on a balance of probabilities that he does not fear the smuggler because of the omission of this allegation from his Basis of Claim form (BoC) narrative. 6) Considering all the evidence on the Appellant's knowledge of Falun Gong, the RPD found on a balance of probabilities that he had not shown that he is a genuine Falun Gong practitioner. It noted that the Appellant was unable to answer a question about what Master Li states in the Zhuan Falun with respect to healing. It drew a negative inference regarding the genuineness of the Appellant's practice of Falun Gong. 7) The RPD noted that Master Li states that one is not a true practitioner if he does not study and memorize the Zhuan Falun. It noted inconsistent evidence regarding the Appellant's efforts to obtain a recording of the Zhuan Falun in Canada. The RPD drew a negative inference regarding the Appellant's credibility in regards to his practice of Falun Gong. 8) The RPD found that photographs presented by the Appellant had limited probative value and assigned little weight to them in regards to his genuine practice of Falun Gong in Canada. 9) The RPD gave some weight to statements from fellow Falun Gong practitioners as evidence of the Appellant's Falun Gong practice in Canada. It found that the statements had no probative value concerning the events in China. 10) The RPD found that the Appellant's activities with Falun Gong in Canada were for the purpose of bolstering his refugee claim and not because he is a genuinely committed Falun gong practitioner. [5] The Appellant submits that the RPD committed serious reviewable errors in arriving at its ultimate determination. He argues that the RPD: 1) Misapprehended the evidence regarding his ability to leave China undetected using his own passport; 2) Engaged in speculation with respect to the enforcement of criminal procedures laws and regulations in China; and 3) Erred in Engaging in an unreasonable analysis of his Falun Gong identity and sur place claim. [6] The Appellant has not submitted new evidence and does not request an oral hearing. He asks the RAD to remit this matter back to a differently constituted panel of the RPD under Section 111(c) of the IRPA. Role of the RAD [7] What is the role of the RAD in considering an appeal against a decision of the RPD? While the Appellant makes no argument with respect to this issue, the RAD notes in Huruglica the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellant's refugee claim. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [8] Justice Phelan stated the following in Huruglica: 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.3 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."4 [9] Considering the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. ANALYSIS [10] Based on a review of all of the evidence and pleadings in the appeal, the RAD focused on one issue in assessing this appeal: Did the RPD err in its credibility analysis? Credibility [11] As mentioned above, the RPD noted anomalies in the Appellant's evidence with respect to the smuggler, the summons and his ability to leave China undetected by the authorities. The RPD found the Appellant's explanations for the anomalies unreasonable. It made a number of findings that, in its view, undermined the Appellant's identity as a Falun Gong practitioner in China. [12] After a review of all the evidence in the record, including the recording of the RPD hearing, the RAD finds that the RPD did not err in noting anomalies in the Appellant's evidence with respect to the smuggler, the summons and his ability to leave China undetected by the authorities. The RAD concurs, in part, with the RPD that each of the anomalies, without a reasonable explanation, undermined the Appellant's credibility. [13] However, the RAD also finds that the RPD did not properly address the core issue in the claim, the Appellant's identity as a Falun Gong practitioner in China. Even if the RPD did not find certain evidence presented by the Appellant to be credible, it was required to conduct an analysis of the remainder of his evidence, specifically as it related to his Falun Gong practice in China and Canada. It is essential that this type of analysis is conducted as there are serious consequences for identified Falun Gong practitioners in China. Identity as a Falun Gong practitioner [14] The RPD assessed the genuineness of the Appellant's practice of Falun Gong, in part, on the basis of his response to its question regarding what Master Li says a practitioner must do in order to be healed. The RPD found that the Appellant ought to have been able to indicate that Master Li notes that a person must return to one's true self before being healed. [15] The RPD indicates the following in the reasons for its decision: ...You provided a number of responses to the question of what does Master Li say a practitioner must do in order to be healed. However, you did not say that Master Li notes in the Zhuan Falun, that one must return to one's true self before getting healed. In my view, even someone in your circumstances who is a beginner, and has limited education, if you were a genuine practitioner of Falun Gong, and if you turned to Falun Gong due to your desire to be healed, that you would understand, or be able to answer this question in the way that Master Li puts it in the Zhuan Falun.5 [16] The Appellant submits that the RPD erred by basing its assessment of his identity as a Falun Gong practitioner on his inability to provide it with a specific answer to a broad question of what Master Li says a practitioner must do in order to be healed. He argues that the error is especially significant in the context of his accurate responses to the RPD's question, which were ignored by the RPD in its reasons. The Appellant submits that the Federal Court has clearly established that it is improper to determine whether a person is genuinely religious by way of "trivia".6 [17] The RAD finds that the Appellant's argument in this regard has merit. Justice Kelen states the following in Wu: In assessing a claimant's knowledge of Christianity, the Board should not adopt an unrealistically high standard of knowledge or focus on a "few points of error or misunderstandings to a level which reached the microscopic analysis" criticized in Attakora v. Canada (Minister of Employment and Immigration) (F.C.A.), (1989), 99 N.R. 168, [1989] F.C.J. No. 444 (QL), and subsequent cases" [see Huang v. Canada (MCI), 2008 FC 346, 69 Imm. L.R. (3d) 286, per Justice Mosley at para. 10; Chen v. Canada (MCI), 2007 FC 270, 155 A.C.W.S. (3d) 929, per Justice Barnes at para 16]. The Board should not fault a poorly educated claimant for being unable to identify a passage dealing with a particular ceremony or ritual in the claimant's holy book [see Feradov v. Canada (MCI), 2007 FC 101, 154 A.C.W.S. (3d) 1183, per Justice Barnes at para. 16]. 7 A reading of the Board's reasons gives the impression that to be determined to be a Christian one should be able to retain at least some encyclopaedic knowledge of the Bible or Jesus' teaching. One cannot help but have sympathy for claimant who was struggling to understand and be understood through an interpreter. Determining whether one is a genuine Christian by way of "trivia" is clearly contrary to the above case law. This Court has often overturned a Board Member's decision as "unfair" and "unreasonable" because the applicant could not answer detailed questions about the Bible.8 [18] The RAD finds that the jurisprudence noted above can equally apply in assessing a claimant's knowledge of Falun Gong. The RAD notes that the Appellant responded to the RPD's questions regarding Falun Gong teachings on health and healing. When asked if he knew about Master Li's talk on health in Zhuan Falun, the Appellant indicated that he did and that Master Li says that one must cultivate the mind and nature and refers to compassion and forbearance. When asked if he knew where Master Li talks about health, the Appellant indicated that he could only remember where he talks about cultivating the mind and nature. When asked if he knew where Master Li talks about how Falun Gong cured his rheumatism, the Appellant indicated that Falun Gong is not meant to cure the disease but that it will be eliminated once one reaches a level of mind and nature when a meridian in the body will open and the disease will disappear. When asked what he meant by reaching a level of mind and nature, the Appellant indicated that it was the level when karma is replaced by virtue. He went on to indicate that once the mind and nature are up to that level, one will benefit from it and the disease is eliminated. When asked if it made sense that one must return to one's true self to get healed, the Appellant indicated that it did and that it was mentioned in one of the talks and it basically meant cultivating virtue and replacing karma. When asked if he knew what Master Li means by returning to one's true self, the Appellant said it was in the fourth exercise on heavenly circulation that's going to give one the return to nature. When asked where Master Li talks about healing, the Appellant said he knew it was mentioned in one of the talks but did not remember which one. [19] The RAD notes that the RPD indicated in its reasons that the Appellant provided a number of responses to the question of what Master Li says a practitioner must do in order to be healed yet did not fully analyse or make a finding on these responses. The RPD did not make a finding on the Appellant's responses to the question yet made a finding on what the Appellant did not say and what the RPD believed ought to have been said. Considering the Appellant's fairly extensive responses to the RPD's questions on Falun Gong teachings with respect to health and healing, the RAD finds the RPD erred in its analysis. Its analysis was microscopic and unfair. The Appellant has a grade three education and cannot read Mandarin or English. If the RPD had credibility concerns regarding the Appellant's responses to a question, it was required to analyse what the responses were and not only what was missing. As such, the RAD does not concur with the RPD's findings with respect to the Appellant's responses on what Master Li says a practitioner must do in order to be healed. Credibility findings on core issue of claim [20] The RAD finds that the RPD did not conduct a thorough analysis of the Appellant's evidence as it related to the core issue of his claim. The Appellant provided evidence regarding his alleged medical condition which led to his alleged participation in Falun Gong activities in China yet there is no analysis of this evidence in the reasons for the RPD's decision. The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.9 The Federal Court has also emphasized that it is important not just to concentrate on exaggerations.10 A panel must do more than simply search through the evidence looking for inconsistencies or for evidence that lacks credibility and ignore the other aspects of the claim. Even if there are inconsistencies or exaggerations, the panel must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.11 [21] The RAD finds that the RPD erred by impugning the credibility of the Appellant's evidence related to his Falun Gong activities in China based an unwarranted finding on the Appellant's knowledge of Falun Gong noted above and on credibility findings of peripheral issues such as the smuggler, the summons and his exit from China. The evidence on the peripheral issues is not necessarily evidence that the Appellant was not a genuine Falun Gong practitioner in China. The RPD fails to adequately tie its findings on the peripheral issues to the core issue in the claim. Although in some cases, a refugee claimant's contradictory testimony can cast doubt upon the totality of his oral evidence,12 this is not always so, especially when the panel's findings of lack of credibility and implausibility are not clearly tied with the ultimate issues to be determined in the claim.13 [22] In this case the RPD's credibility findings are not clearly tied with the ultimate issue to be determined, the Appellant's identity as a Falun Gong practitioner. The RPD did not make a finding that the Appellant lacked credibility and did not make a finding with respect to the credibility of his Falun Gong practice in China. Although the RPD draws negative inferences with respect to the credibility of the Appellant's Falun Gong practice it fails to make an overall credibility finding of the Appellant or on the genuineness of his Falun Gong practice in China. As such, the RPD's conclusion cannot stand and neither can its determination of the claim. DISPOSITION [23] The Appellant asks the RAD to remit this matter back to a differently constituted panel of the RPD. The RAD concurs with this remedy and will refer the matter back to the RPD for re-determination. CONCLUSION [24] This appeal is allowed and the determination of the RPD is set aside. 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) "M. Pettinella" M. Pettinella June 3, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para. 54. 4 Huruglica, para. 55. 5 Exhibit RPD-1, at p. 9. 6 Wu, Penghui v. M.C.I. (F.C., no. IMM-664-09), Kelen, September 17, 2009, 2009 FC 929. 7 Wu, Penghui v. M.C.I. (F.C., no. IMM-664-09), Kelen, September 17, 2009, 2009 FC 929, at para. 21. 8 Wu, Penghui v. M.C.I. (F.C., no. IMM-664-09), Kelen, September 17, 2009, 2009 FC 929, at para. 22. 9 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989; Mensah, George Akohene v. M.E.I. (F.C.A., no. A-1173-88), Pratte, Hugessen, Desjardins, November 23, 1989; Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.); Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.). 10 Yaliniz, Tacir v. M.E.I. (F.C.A., no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988, Reported: Yaliniz v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 163 (F.C.A.); Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A.). 11 Yaliniz, Tacir v. M.E.I. (F.C.A., no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988, Reported: Yaliniz v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 163 (F.C.A.); Djama, Idris Mohamed v. M.E.I. (F.C.A., no. A-738-90), Marceau, MacGuigan, Dcary, June 5, 1992. 12 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 13 Ferdosi, Jahan v. M.C.I. (F.C.T.D.,no. IMM-2626-00), MacKay, November 5, 2001, 2001 FCT 1203. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00014