TB4-00952

tImmigration 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 : TB4-00952 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 May 14, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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) denying his claim for protection. He has not submitted new evidence in support of his claim and he has not requested an oral hearing. The appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute that decision with its own determination that the appellant is a Convention refugee or a person in need of protection. Alternatively, the appellant requests that the RAD remit this matter back to a differently-constituted panel of the RPD. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The appellant alleges he suffered from XXXX XXXX XXXX and he was introduced to Falun Gong by a friend in XXXX 2012. He initially declined to engage in practice but several weeks later, when his friend offered to teach him the exercises at home, he agreed. He joined a practice group a month later. Shortly after joining a group, a friend was arrested by the Public Security Bureau (PSB) because of his Falun Gong practice. As a result, the appellant tried to obtain a US visa but it was denied. [4] On XXXX XXXX, 2012, he and four others placed Falun Gong leaflets in a park at night. Another group, including the appellant's friend placed leaflets in a park several days later. They were discovered by Chinese authorities and his friend was arrested. As a result the appellant went into hiding. Subsequently, the PSB went to his home and sought information from his wife regarding his whereabouts, and he was ordered to surrender immediately. When he did not surrender, the PSB returned and issued a summons. They also went to the homes of his relatives. As a result he made arrangements to leave China with the help of a smuggler. [5] The PSB threatened his wife. As a result she petitioned for a divorce, and after the divorce the PSB continued to visit his parents in regard to his whereabouts. The appellant planned to travel to Canada through the United States, however the smuggler told him he would not assist the appellant in reaching Canada until the balance of his fee was paid. The family paid part of the cost but the appellant was forced to work for the smuggler in order to pay off the debt. When the debt was paid he traveled to Canada on XXXX XXXX, 2013 and subsequently made a claim for protection. [6] The PSB continue to look for him in China. THE ISSUES [7] The issues identified by the appellant are the following: * What is the applicable standard of review? * Did the RPD make erroneous credibility findings? * Should the RAD set aside the decision of the RPD and find that the ` appellant is a Convention refugee? [8] Specifically, the appellant submits that: * the RPD applied an overly stringent and microscopic examination of his religious knowledge; * the RPD made adverse findings based on an alleged lack of corroborative documentation; * the RPD made overly microscopic credibility findings; * the RPD made unsustainable findings about the appellant's exit from China. ANALYSIS Standard of Review [9] The appellant submits that this appeal constitutes a de novo proceeding. The appellant notes in this regard that he has a statutory right to an appeal; that the RAD has jurisdiction to consider appeals on questions of fact, law and mixed fact and law; and therefore the RAD is concerned with what is the correct decision in this case regardless of the findings of the RPD. [10] The appellant further submits that a number of factors favour little, if any, deference to the RPD's decisions. The appellant notes in this regard that, in relation to the RAD, the RPD is not a specialized tribunal, as both the RPD and the RAD belong to the same tribunal. The appellant further notes that an appeal to the RAD is a full appeal, in that it is not limited to issues of law. The appellant notes as well the RAD is able to substitute its own findings for that of the RPD, suggesting the RAD has the ability and the expertise to determine the same questions as those before the RPD. [11] The appellant submits that the RAD owes no deference to the RPD's findings in this case. [12] The appellant argues the RPD made erroneous credibility findings and also made erroneous findings based on the lack of corroborating evidence. These are findings of fact and mixed fact and law, and the RAD finds for the reasons set out below, that the standard of review for findings of fact and mixed fact and law is reasonableness. [13] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [14] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [15] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (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 respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [17] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [18] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [19] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [20] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [21] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [22] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [23] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [24] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [25] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [26] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [27] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. 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 the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [28] The appropriate standard of review in this appeal is one of reasonableness as the alleged errors concern findings of fact and mixed fact and law. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 Whether the RPD applied an overly stringent and microscopic examination of the appellant's religious knowledge [29] The RPD found that the appellant did not demonstrate sufficient knowledge of Falun Gong in order to establish that he is a genuine practitioner. [30] The RPD noted the appellant testified he was completely committed to Falun Gong and that he had read and studied Zhuan Falun, although he did not understand some of the material. The RPD noted however that the appellant had difficulty describing some basic concepts of Falun Gong. The RPD asked the appellant what were the differences between Falun Gong practice in China and Canada, and the appellant responded he could practice freely in Canada and discuss issues with other practitioners. The RPD asked if there were other differences and the appellant said no. The RPD noted that spreading the Falun Gong message is a requirement of practice and this was prohibited in China. The appellant agreed and said he did spread the message in Canada. The RPD noted the appellant did not provide an explanation as to why he did not say that this is one of the differences between practice in China and practice in Canada, and drew a negative inference in this regard. [31] The RAD agrees with the appellant that the RPD's analysis on this issue is microscopic. The RAD finds it is unreasonable to expect the appellant to know what particular difference the RPD was referring to. The RAD notes in this regard that the appellant alleges he did spread the message of Falun Gong in China as well as Canada. The RAD further notes the RPD's question concerned differences and not what was prohibited. In any case, all Falun Gong practices are prohibited in China and the appellant testified in his initial response to the RPD's question that he could practice freely in Canada. The RAD finds the RPD's negative inference in this regard is unreasonable. [32] The RPD asked the appellant what Master Li says about Buddhist law and the appellant was unable to answer the question. The RPD noted that this was a basic element of Falun Gong as Falun Gong is based, in part, on Buddhism. The appellant responded he had just purchased Zhuan Falun and had only read for a short period since arriving in Canada. The appellant further testified that the snakehead confined him for seven months in the United States and he could not practice Falun Gong at that time. The RPD found this explanation not to be reasonable. The RPD noted that if the appellant was practicing in China twice a week with a group and instructor from mid-XXXX 2012 until XXXX 2013, it was reasonable to expect that he would know this basic information. The RPD drew a negative inference in this regard. [33] The RPD also noted that the appellant indicated in his Port of Entry (POE) documentation that he was a member or associated with the Falun Gong while he was living in the United States. The appellant stated he did not say this, but the RPD confirmed that he did. The appellant then testified he was a practitioner in the United States but he was not a member of a group. The RPD noted the inconsistency of the appellant's testimony in this regard and drew a negative inference. [34] The appellant argues that the RPD's examination was microscopic and that the appellant provided a reasonable explanation that he practiced but was not a member of a group. [35] The RAD finds it was open to the RPD to ask the question about Buddhism as it concerns basic Falun Gong knowledge. The RAD further finds that the question does not reflect a microscopic examination. [36] The RAD notes the appellant testified he had just purchased Zhuan Falun and had only read it for a short period. However, the appellant also testified that he has read and studied Zhuan Falun, although he further testified he did not understand some of the material. The RAD further notes that it was reasonable for the RPD to expect some awareness of the linkage between Falun Gong and Buddhism by someone who has read Zhuan Falun, as it is plainly found in that text. The RAD finds as well the RPD's negative inference was reasonable. [37] In regard to the inconsistency between the appellant's testimony and the port of entry notes, the RAD notes that the appellant had explained his alleged inability to practice Falun Gong in the United States during his XXXX-month residence in that country was part of the reason he was unable to respond to the RPD's question. The appellant subsequently testified that he did practice Falun Gong in the United States. The RAD finds the RPD's negative inference in regard to the appellant's inconsistency is reasonable. [38] The RPD noted that the appellant could not describe the concept of evil cultivation and he could not say where this concept could be found in Zhuan Falun. The RPD noted that evil cultivation is a basic concept and found it reasonable to expect that someone with the appellant's experience of Falun Gong practice would have been aware of this concept. The RPD drew a negative inference in this regard. [39] The RAD finds that it was open to the RPD to ask a question concerning this basic concept of Falun Gong theory. The RAD further finds this question does not reflect a microscopic examination in that the appellant testified he read and studied Zhuan Falun. The RAD finds as well that it was reasonable for the RPD to expect that someone, with the appellant's Falun Gong experience, would be able to provide an answer to this question. The RAD finds the RPD's negative inference is reasonable. Whether the RPD made unsustainable findings regarding the appellant's exit from China [40] The RPD noted that the appellant confirmed that he used his own passport and United States visa to leave China. The appellant further testified he thought the snakehead might have bribed customs officials. The RPD noted the appellant could not provide any information regarding the smuggler's instructions and what happened in the airport except that the smuggler told him not to worry. The RPD further noted that when the appellant was asked directly how he knew which security officer to go to at the airport, he responded that the snakehead told him to go to a specific officer. When the appellant was asked why he did not provide this answer, when he was asked about the snakehead's instructions, he could not provide any explanation. The RPD found that it was reasonable to expect that the appellant would have remembered with consistency the instructions of the smuggler if the appellant was being smuggled through an international airport. [41] The appellant argues that it is reasonable to assume that he could simply follow the smuggler in the airport and not know or say very much. [42] The RAD notes the RPD's negative credibility finding was based on the inconsistency in the appellant's testimony regarding whether the smuggler provided any instructions. The appellant initially testified the smuggler only told him not to worry. Only after a direct question by the RPD concerning which security official to choose, the appellant testified he was told to go to a particular security agent. The RAD notes as well that the appellant provided no explanation for his inconsistent testimony. The RAD finds it was available to the RPD to question the appellant regarding his passage through the airport as there was clearly potential danger for someone allegedly wanted by the PSB. The RAD further finds the RPD's finding in this regard falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and therefore reasonable. [43] The RPD cited documentary evidence indicating the PSB monitors a citizen's exit from China and an individual wanted by the PSB and using his own passport would be noted in the computer database and not allowed to exit China. In the context of this evidence, the RPD found that the appellant was not being pursued by the PSB. [44] The appellant argues that this finding is unsustainable and cited the Federal Court's decision in Zhang,17 in which the Court cited a 2005 United Kingdom Home Office report concerning corrupt officials in China. The Court further cited a 2001 country document report indicating that theoretically travel documents should be checked twice in the airport, and if traveling to Canada three times. This document further indicates that all names are supposed to be checked through the computer system, but errors can be made or names not entered correctly. It is further indicated that a wanted person should not be able to depart, but it could happen. The Court found in the context of this documentary evidence the Board engaged in speculation when it concluded "that possibly hundreds of officials had to be bribed". [45] The RAD notes that the evidence in Zhang18 indicated the claimant testified that she was told by the smuggler that her name was not put through the system and that the smuggler had bribed "the customs". In the case at bar, no such evidence was disclosed. The appellant testified he thought the smuggler might have bribed customs officials but no further evidence in this regard was disclosed. The RAD further notes the Court in Zhang19 was responding to the RPD's conclusion "that possibly hundreds of officials had to be bribed" and found that the Board had engaged in speculation. In the case at bar, the RPD makes no such speculative leap. [46] More significantly, the RAD notes that the decision in Zhang20 was based on the documentary evidence that existed in 2008, and in particular a 2001 document in the National Documentation Package and a 2005 document in a UK Home Office country report. In the case at hand, the RPD relies on the documentary evidence in the record today. The RAD notes that the United Kingdom Operation Border Report, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.21 [47] Based on the foregoing, it is clear that such a system is in place. The RAD notes the Federal Court has stated that the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.22 The Court has further stated that where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.23 In this case, there is an evidential foundation for the RPD's findings that it would not be possible for a person of interest to the PSB, who uses his own passport, to pass through at least two security screenings without being stopped by a security official The RAD finds that the RPD's credibility finding on this issue is reasonable. Whether the Appellant is a genuine Falun Gong practitioner [48] In regard to the sur place aspect of this claim, the RPD noted the appellant provided handwritten notes alleged to be from fellow practitioners in Toronto attesting to the genuineness of the appellant's Falun Gong practice. In the context of the RPD's credibility concerns, it gave these documents little weight. The RPD further found, in the context of its credibility concerns, that the appellant was not a genuine Falun Gong practitioner. [49] The RPD also gave little weight to the summons document, given the serious credibility concerns noted in its reasons and as well documentary evidence concerning the easy availability of fraudulent documents in China. In this context, the RPD found that the appellant was not wanted by Chinese authorities. [50] The RAD finds that it was available to the RPD to base its findings concerning the genuineness of the appellant's Falun Gong identity and the truth of the appellant's assertion that he was being pursued by the RPD on the totality of evidence available to it. In this regard, the Federal Court in Jiang24 stated that the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. The RAD notes this evidence includes the appellant's failure to answer questions concerning basic Falun Gong teachings. [51] The RAD finds that the RPD's findings in regard to the appellant's Falun Gong identity and pursuit by the PSB fall within a range of possible acceptable outcomes which are defensible with respect to the facts and the law, and therefore reasonable. DISPOSITION [52] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) 'Milton Israel' Milton Israel May 14, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-2703-07), Dawson, April 23, 2008, 2008 FC 533 18 Ibid. 19 Ibid. 20 Ibid. 21 RPD record, Exhibit 3, National Documentation Package (NDP) for China (31 October 2012), item 2.4. 22 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 23 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 24 Jiang, Sumei v. MCI (F.C., no. IMM-13-12), Zinn, September 10, 2012; 2012 FC 1067 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-00952