TB5-14032

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 : TB5-14032 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 16, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jonathan E. Fedder 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 XXXX, is a citizen of China, and appeals a decision of the Refugee Protection Division (RPD) dated October 7, 2015, rejecting his claim for refugee protection. The RPD hearing was held on July 28, 2015 and August 19, 2015. The Appellant is not submitting new evidence and is not requesting a hearing. The Appellant is requesting that the decision of the RPD be set aside and refer the matter back to the RPD. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant fears returning to China because he fears persecution on account of his religious belief as a Christian. ROLE OF THE RAD [4] 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". [5] 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. [6] 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. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim was credibility. The RPD also dealt with the issue of Sur Place. The RPD found that the Appellant was not a credible witness. [8] The Appellant challenges the credibility findings of the RPD with respect to: a) The Golden Shield b) The Claimant's knowledge of Christianity c) The Claimant's POE statements [9] Furthermore, the Appellant alleges that the RPD failed to consider important evidence. DETERMINATION [10] The Appellant's allegation is that he cannot return to China due to his membership in a Christian Church. The RPD found that the Appellant was not credible with respect to his membership in a Christian Church. The RPD found that he lacked credibility due to his lack of effort to speak to his parents about Christianity3 and the RPD also found that the documents provided by the Appellant, namely a letter of support and a baptism certificate from the Christian Alliance church, to have been obtained solely for the purpose of bolstering his refugee claim.4 [11] The RAD has had an opportunity to listen to the recording of the RPD hearing and to review the documentary evidence. The RAD has concluded that the RPD failed to ask appropriate questions relating to the Appellant's knowledge of Christianity and with respect to his participation in the XXXX XXXX Church. The RPD basically rooted its credibility concerns with respect to the Appellant's knowledge of Christianity on his failure to discuss one aspect of Christianity, the afterlife, with his Buddhist parents. As far as the RAD is concerned, this limited line of questioning is not sufficient to permit a determination of the Appellant's knowledge of Christianity. Based on the questioned posed by the RPD, the RAD cannot come to any determination as to whether the Appellant has a knowledge of Christianity or not. [12] The RPD also concluded that the documents submitted by the Appellant to demonstrate that he is now a practicing Christian in Canada to have been submitted to bolster his refugee claim. However, the RPD does not provide any factual finding to support this conclusion. DECISION [13] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. [14] The Appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino March 16, 2016 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, pg. 6, parag. 13. 4 Exhibit P-2, pg. 12-13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-14032