TB5-05341

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 : TB5-05341 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 XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 2, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Theressa Etmanski 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) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee, grant an oral hearing before the RAD, or refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for redetermination, giving directions to the RPD that it considers appropriate. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [3] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] The Appellant tendered two documents as proposed new evidence to support their appeal. [5] The first document was an affidavit of the Appellant dated July 28, 2014. In this affidavit, the Appellant gives an explanation for his testimony at the hearing. The RAD finds that this document is not new evidence, simply an explanation of his testimony during the hearing: issues that were more properly addressed in the Memorandum of Appeal. [6] The second document tendered was a letter submitted by XXXX XXXX XXXX, a colleague of the Appellant's wife, XXXX XXXX. While the letter itself postdates the rejection of the refugee claim, the content of the letter predates the rejection. The Appellant is instructed, in the BOC instructions, to bring documents to corroborate their claim. In the Memorandum of Appeal, there is no explanation given as to why this document was not available prior to the refugee hearing or decision date. In addition, the letter submitted is not notarized or sworn as to its truthfulness. There is no notarization to support that the author of the letter is in fact an employee of the XXXX XXXX XXXX Department, or that the personal identity of the author is confirmed. The RAD finds that the letter submitted does not meet the requirements of section 110 (4) of IRPA. Memorandum of Appeal [7] The appellant submitted his Memorandum of Appeal on July 28, 2014. An update to the Appellant's memorandum regarding the standard of review was submitted on August 15, 2014. [8] The Appellant submits much case law on the standard of review based on the RAD's previous basis of appeal, reasonableness. [9] The appeal is based on the following issues: (a) The RPD erred in assessing Mr. Lee's credibility by: (i) failing to consider all relevant evidence in support of Mr XXXX XXXX claim; (ii) misapprehended the evidence before it; (iii) unreasonably rejecting plausible explanations provided by the claimant; and (iv) applying a subjective or North American Standard, rather than considering the factual circumstances of the claimant. (b) The RPD misapprehended the Appellant's evidence with regards to his delay in claim, and applied too strict in approach to his consideration of the Appellants' subjective fear of persecution. BACKGROUND [10] The Appellant was married on XXXX XXXX, 2005, and they had a daughter born on XXXX XXXX, 2010. The Appellant and his wife were informed by the Family Planning Bureau of the Shenyang Taxation Department that in spite of qualifying for a second child, they would not be granted permission to do so. In spite of performing their own private method of birth control, the Appellant's wife became pregnant and had an abortion in XXXX 2011. The family appealed this decision at higher levels of government, but were refused permission. Her employer, as a result of the appeal, gave her more work, a less spacious office, and threatened that she would be terminated if she continued protesting. After finding out that the Appellant's wife persisted in pursuing the matter, the Family Planning unit required his wife to be sterilized in XXXX 2012. After being informed that she was not physically able to undergo such surgery, the Family Planning Unit required the Appellant to be sterilized instead of his wife. After deciding that leaving the country was the best solution, the Appellant hid at a friend's home, until he left the country. The Appellant left China on February 20, 2013 using his own passport. When the Family Planning Unit kept looking for the Appellant, his wife informed them that he was on a business trip to Canada. When hearing of the relaxation of the birth control policy in November 2013, the Appellant's wife explored the option of having another child, but was refused. After the threatening of his wife with termination of employment, the Appellant made a refugee claim in Canada in March 2014. The Appellant feels that he would not be safe anywhere in China and would be taken for sterilization if he returns. [11] The Appellants' application for refugee protection was heard on June 9, 2014. In a decision of June 14, 2014, the RPD rejected their claim finding that , given the Appellant's overall lack of credibility, he did not provided sufficient credible or trustworthy evidence to determine that there is a "serious possibility" that he would be persecuted, nor has he provided sufficient credible and trustworthy evidence to establish that there are substantial grounds to believe that he would be tortured, or at risk of losing his life or being subjected to cruel and unusual treatment or punishment if he returned to China. ROLE OF THE RAD [12] The Appellant submitted much case law supporting the previous Standard of Review employed by the RAD. [13] The RAD finds that the 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 [Appellant] 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." [14] 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. 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 Merits of the appeal [15] The RPD gave the Notice of Sterilization issued to the Appellant no weight, given contradictions, and inconsistencies between the Appellant's testimony and documentation submitted. The appellant stated that on three occasions, during testimony, that he had received the Notice of Sterilization of XXXX XXXX, 2012. He testified that he applied for his passport right away and obtained it on December 21, 2012. When asked how he could acquire his passport on December 21, 2012 in order to leave China to avoid sterilization, when he did not receive the he did not receive the Notice until XXXX XXXX, 2012, the appellant explained that he must have remember the date incorrectly because he was nervous. The RPD did not accept this explanation as reasonable because he gave the date on three separate occasions. The RPD noted that this material contradiction negatively impacted upon the Appellant's overall credibility. [16] The Appellant stated that the RPD erred by exaggerating the Appellant's testimony by stating that he had provided the wrong date on three occasions rather than two. The appellant also stated that he gave the correct date when questioned by his counsel at the RPD hearing. Quoting case law, the appellant stated that it is not sufficient to base a negative credibility finding on one inconsistency, attributed to nervous confusion. [17] The RAD, in reviewing the transcript of the hearing agrees with the Appellant, in that he stated the incorrect date on two occasions not three. In questioning the Appellant stated on two occasions that he received the Notice of Sterilization on XXXX XXXX, 2012. He then testified that he immediately went to acquire a passport so that he could leave the country. The date of applying for the passport was allegedly December 21, 2012. When the disparity between the dates of both acquiring his passport, and the Notice of Sterilization, was pointed out to the Appellant, he stated that he was very nervous as a means of explaining these inconsistencies. The RAD finds, on a balance of probabilities, that the Appellant's credibility because of these inconsistencies was undermined. It would be reasonable to expect that in such an important and emotionally charged situation, as being given a Notice of Sterilization, the date would be clearly remembered, especially since it allegedly caused him to immediately acquire a passport and leave the country. However, the RAD is in agreement with the Appellant in that one inconsistency or contradiction, even if major, should not determine the claim in its entirety. [18] The RPD found that because the Notice of Sterilization was not on official letterhead from the Shenyang Taxation Department, the Appellant's testimony regarding this issue was not credible. The Appellant explained that they did not use official letterhead on the Notice because they were applying a policy contrary to the national policy and therefore sent the notice in its current form. The Appellant stated that the Family Planning Unit of the Shenyang Taxation Department did not demand that regular checkups for pregnancy be administered, or the insertion of an IUD mandated. Yet, the same department was prepared to force sterilization on the Appellant's wife or the appellant. The RPD found these measures contradictory, one being lenient, and the other "draconian". As a result, the RPD found the Appellant's testimony on this issue not credible. [19] The appellant argues that the RPD member erred in this finding regarding the Notice of Sterilization. The appellant reasonably could have no knowledge of the acts and motivations of the Taxation Department's Family Planning Unit. [20] The RAD finds that the RPD's assessment of the situation is sound. It is also reasonable to expect that the Appellant would not have knowledge of their procedures, as stated in the Memorandum of Appeal. However, in testimony, was quite clear about why the Notice of Sterilization was not issued on official letterhead. The RAD finds, on a balance of probabilities, that a major government department when issuing a directive would surely use the appropriate stationery and documentation to verify where and from whom the instructions or notice were being issued. The RAD finds, on a balance of probability, that the Notice of Sterilization is not genuine. Delay in Claim [21] The RPD found that the Appellants delay of 14 months in making his claim in Canada showed a lack of subjective fear. This was especially true after August 2013, where the Appellant remained in Canada without status; and made no attempts to extend his status and worked illegally in Canada. The RPD found that this negatively impacted upon his overall credibility [22] The appellant, quoting case law, stated that delay in applying for refugee protection is not an automatic bar to a claim for protection. It is one factor to consider when determining the Appellants' subjective fear; it is not a decisive factor in itself. The appellant argued that in light of all the circumstances in this case, including the Appellant's actions of applying for passport immediately after receiving the Notice of sterilization and while hiding out at a friend's house until he could make arrangements to leave the country, the Appellant's testimony is reasonable. The Appellant came to Canada soon as possible. It was unreasonable for the RPD to conclude that the appellant lacked subjective fear as a result of this delay. [23] The RAD concurs with the RPD's decision that the delay was egregious. It would have been reasonable for the Appellant to apply for status as soon as he arrived in Canada. However, it is possible that he could have delayed his claim until August 2013, when his visa expired. However to work in Canada illegally, according to documentation and testimony, and not seek legal status, undermines the Appellants allegations of subjective fear. Missing documentation and RPD errors [24] The RPD erred in a number of areas. [25] The RPD did not make a finding on the medical documentation submitted to support his wife's abortion and report declaring her unfit for sterilization. The RPD did not make a finding regarding the letter of Ms. XXXX, a similarly situated woman. The letter from Mr. XXXX confirming that the Appellant was staying with him was not addressed by the RPD. The appellant quoted case law to support his submission that these documents should have been addressed because they supported the Appellant's claim. [26] The RPD made several statements regarding the Family Planning Unit not requiring the Appellant's wife to go for regular checkups, but did not quote documentation to support the statements. The RPD used the Appellant's contradictory statements regarding the purposes of the Shenyang Taxation Departments Family Planning Unit as opposed to documentary evidence of the national policy of China as proof of his statements in the decision. This is in error. [27] The RPD did not explore the issue of being sought by the Family Planning Unit although this issue was raised briefly in the RPD hearing. [28] The RPD did not explore the issue of the Appellant being wanted by the authorities but still being able to leave China without difficulty. In testimony, the Appellant only stated that the person who helped him, helped him acquire a Canadian visa. [29] Although some points of the RPD's decision are sound, the RAD finds, on a balance of probabilities, that errors have been made, and the findings in themselves are insufficient to deny the refugee claim of the Appellant in that they could have impacted upon the outcome of the decision. There are other documents that could reasonably have been requested, by the RPD, from the Appellant, such as the Family Planning booklet that is issued to every woman who bears a child-according to documentation. The documentation for the abortion of the appellant's wife should reasonably have been requested for the RPD hearing, or a finding made if the documentation were not presented This documentation explains why the abortion was performed, making it a very probative piece of documentation. [30] The RAD also notes that there is some inconsistency in documentation as to the Appellant's marital status. No documentation was given to support the alleged divorce. [31] According to section 111 (2) (b) of IRPA, the RAD is unable to under Section 111(1)(c) of the IRPA, to substitute its own decision without hearing evidence that was presented to the RPD. CONCLUSION [32] Under Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. The appeal is allowed. (signed) "Robet S. Garner" Robert S. Garner July 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05341