TB3-05165

RAD File No. / N° de dossier de la SAR : TB3-05165 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 October 22, 2013 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (The Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated July 22, 2013 rejecting her claim for refugee protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the Appellant is neither a "Convention Refugee" pursuant to Section 96 of IRPA, nor a "person in need of protection" pursuant to Section 97 of IRPA. The appeal is dismissed. BACKGROUND [3] The Appellant is a 24 year old male. He alleges that his father was informed in XXXX 2012 that their house, along with several others, was going to be expropriated to build a commercial zone. This was followed by a written notice to his father that they must vacate the house by XXXX XXXX, 2013 and they will receive a compensation of 100,000 RMB. They hired an evaluator who estimated that their house was worth 250,000 RMB. [4] The Appellant's father and a few other affected owners chose to go to the authorities to seek higher compensation. After several meetings, they were told that the amount would remain the same and their demands for higher compensation were denied. On XXXX XXXX, 2013, several persons demonstrated in front of the town government offices. At the demonstration, police arrested five persons including the Appellant's father but the Appellant fled the scene and went to his aunt's place to hide. [5] The authorities left a summons at the Appellant's house accusing him of engaging in anti-government activities, slandering the government and inciting people to protest against the government. The Appellant found a smuggler and fled China on XXXX XXXX, 2013, arrived in Canada and claimed protection. [6] The Appellant's aunt saw a "wanted circular" for his arrest that was posted in a bus stop. [7] The Appellant was represented by counsel at the hearing. [8] In its reasons, the Refugee Protection Division (RPD) found that the Appellant was neither a Convention refugee nor a person in need of protection. The determinative issue was credibility; in particular, the RPD questioned the authenticity of the warrant, and the "wanted circular" regarding the Appellant. The RPD also found that the Appellant was evasive regarding details of the alleged protest of XXXX XXXX, 2013. Moreover, the RPD found it unlikely that the claimant would have been able to leave China without being detected by the authorities. Overall, the RPD found that the appellant's testimony that he is being pursued by the Public Security Bureau (PSB) is not credible. [9] The Appellant, in its pleadings dated August 21, 2013, submitted that the panel erred in arriving at its ultimate conclusion because: a) the panel failed to make a clear determination concerning the authenticity of the claimant's summons; and, b) the panel erred in analysis regarding the claimant's ability to exit from China undetected by misapprehending the evidence before it concerning authorities access to a central police network. [10] The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the Panel and substitute that decision with its own determination that the claimant is a Convention refugee or a person in need of protection in accordance with its jurisdiction under section 111(b) of the Act. In the alternative, the Appellant requests that the RAD remit this matter back to a differently constituted Panel of the Immigration and Refugee Protection Board under section 111(C) of the Act. STANDARD OF REVIEW [11] The issue according to the Appellant is, "should the Refugee Appeal Division set aside the Panel's determination in this matter and substitute that determination with the determination that the claimant is a refugee or a person in need of protection, or alternately grant an order referring this matter back to the Refugee Protection Division for redetermination."1 [12] However, in my opinion the issue whether the RPD erred in its credibility analysis on if the Appellant is wanted by the PSB. [13] The Appellant did not submit any new evidence, and made no submissions on the issue of the standard of review. [14] The Appellant argues that the RPD made an error in the assessment of evidence before it in arriving at its finding that the Appellant is "not being pursued by the PSB as he alleges.2" This finding is a question of fact and thus a reasonableness standard of review will apply as per the reasons below. [15] In assessing and selecting the appropriate standard of review for findings of fact, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,3 which take into account the list of factors in Dunsmuir.4 The Newton factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [16] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. Based on the guidance from Newton, the RAD focused on the factors listed below to determine the standard of review. [17] The Supreme Court of Canada in Khosa5 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and, * the nature of the question in issue. [18] Both the RPD and RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act (IRPA). Section 162 of the IRPA empowers both the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD), "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." [19] The respective roles of the RPD and RAD are not the same. The primary role of the RPD is to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [20] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after directly taking testimony of witnesses and evaluating it. [21] In most cases, the RAD must proceed without a hearing on the basis of the record, submissions by the parties and new evidence accepted by it.8 The RAD's authority to consider new evidence provided by the Appellant and hold hearings is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person that is the subject of the appeal could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 The RAD may also conduct oral hearings under some circumstances where the new evidence raises a serious credibility issue with respect to a person who is a subject of the appeal.10 [22] Given that the RPD has held a hearing on the totality of the evidence; and the RPD has heard from the Appellant directly at a hearing; and the RAD's authority to consider new evidence and to hold oral hearings is limited in IRPA; The RPD will, in most cases, be in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This is consistent with Newton, where it states with respect to the Appellate Division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [23] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD; and that the RPD decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [24] In the case at hand, the Appellant alleges that the RPD made errors of fact in arriving at its determination. As indicated above, this being an issue of fact, it will be reviewed on the reasonableness standard. Also based on the analysis above, the RAD has afforded a considerable level of deference to RPD findings on questions of facts. Analysis of the Merits of the Appeal [25] While I agree with the Appellant's first issue that the RPD did not enunciate "a clear determination concerning the authenticity of the Claimant's summons - a key document corroborating the Claimant's fear of persecution"14, I do not find it to be material error in this decision considering the totality of the evidence before me. The issue, as I have phrased earlier, is whether the PSB is pursuing the Appellant or not. Thus, the second and the last issue raised by the Appellant regarding the Appellant's "ability to exit from China undetected" may or may not be relevant. [26] In Newfoundland and Labrador Nurses' Union,15 The Supreme Court stated the following: [12] It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision". In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: "Reasonable" means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added [by Supreme Court].] (David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304) [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [27] Based on the foregoing, it is clear that the RAD can look at the records to supplement the reasons if necessary. I have therefore examined the RPD records along with its reasons in this case to determine if the RPD's finding is reasonable that, on a balance of probabilities, the PSB is not pursuing the appellant. [28] The RPD, in its reasons, expressed concern and pointed out that the alleged arrest warrant does not include the name of the person who issued the summons and it does not contain the name of the person who served the warrant.16 The RPD made reference in paragraph 23 of its reasons to objective evidence that states that the issuance of a criminal summons must be approved by the officer in charge of a PSB at or above the county level. In fact, the documentary evidence states the following: [t]he issuance of a summons has to be approved by the director of a public security station (paichusuo) or by the officer in charge of the 'case handling department' at a public security organ at or above the county level. [29] I acknowledge that the above does not specifically state that names of the authorizing or serving persons must be included. However, it would be reasonable to interpret that the name of the person who approved the warrant should be present otherwise how is one to know if it is an approved warrant. However, even if I were to consider that the name of the person who approved the warrant is speculative; there are other concerns about the warrant, which, in essence, is the reason for the alleged fear for the Appellant in China. [30] The RPD panel expressed credibility concerns and also cited the ease with which false documents may be obtained in China. Therefore, it is important to look at this document very carefully. The documentary evidence17 describes the dimensions of an arrest summons issued by the Chinese PSB. Criminal summonses must be printed in three copies on 260 mm high and 185 mm wide sheets of white paper, with a top margin of 25 mm, a bottom margin of 20 mm, a left margin of 25 mm and a right margin of 15 mm with a 0.5 mm tolerance. [31] In light of the above, the RAD asked for and received the original arrest warrant for precise measurements, since, in photocopies, the dimensions may get altered. The original warrant provided to the RAD by the Appellant was measured precisely and showed a top margin of 61 mm, a bottom margin of 42 mm, a left margin of 24 mm and a right margin of 22 mm. These measurements are far-off from those indicated by the documentary evidence and the variance far-exceeds the tolerance of 0.5 mm indicated by the documentary evidence above. [32] Based on the foregoing, I find that the RPD finding that the arrest warrant does not deserve much weight was reasonable. This alleged warrant is the key evidence in support of the Appellant's allegation that the PSB is interested in the Appellant. In its absence, the only remaining documentary evidence to support his allegations is the Wanted Circular. The RPD decision includes a number of concerns regarding this document also. The Appellant did not raise an issue regarding the RPD's finding on this Wanted Circular. Therefore, the finding of the RPD that the appellant did not establish through credible evidence that he was wanted by the PSB is reasonable. The issue that the Appellant was able to exit China is indicative that the PSB is not interested in him, and fully supports the finding of the RPD that the PSB is not after him. [33] Based on the foregoing, I find that the RPD's reasons conform to the "reasonableness" criteria in Dunsmuir18 and are transparent, intelligible and justifiable. I therefore confirm the determination of the RPD. DETERMINATION [34] For these reasons, the RAD confirms the negative determination of the Refugee protection Division as per s. 111(1)(a) of IRPA and finds that the Appellant is neither a Convention refugee nor a person in need of protection. The Appeal is dismissed. (signed) 'Atam Uppal' Atam Uppal October 22, 2013 Date 1 AR (appelants record) page 18, paragraphe 7. 2 AR, page 15, para 38 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110.3. 9 IRPA, s. 110.4. 10 RAD, Rule 57 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para. 47 14 AP page 17 para 2a 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011), link: http://canlii.ca/t/fpbh9 16 AR, page 9, pgh 23. 17 Exhibit 5, U.S. Dept. of State Report, China, 3 May 2013, item 9.8, Response to Information Request CHN104188, China: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses and subpoenas are given to individuals or households; format and appearance; whether legality can be challenged; penalties for failure to comply with a summons or subpoena. 30 November, 2012 18 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05165